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Student-athletes as school employees could lead to interesting negotiations

Eric Prisbellby:Eric Prisbell02/15/22


When a second college athlete advocacy group filed unfair labor practice charges with the National Labor Relations Board against the NCAA last week, it served as the latest indication that fierce winds of change continue to blow in the same direction. College athletics could be on the precipice of a seismic transformation if student-athletes in the coming years are deemed employees of their universities.

One industry leader assessing what the new landscape may look like is Casey Schwab, who left a prominent role as vice president of business and legal affairs with the NFL Players Association in 2020 to found NIL-centric Altius Sports Partners. Altius has 20 clients across every Power 5 conference, including Georgia, Texas, LSU and USC. During a wide-ranging discussion with On3, Schwab offered insight into a complicated set of forces that are gaining momentum, all of which warrant further exploration during what is expected to be a multiyear process that could revolutionize the university-athlete relationship. 

Despite uncertainty over exactly how or when it occurs, there’s now a feeling of inevitability among many stakeholders, Schwab said, that in the coming years a smaller subset of student-athletes — at least initially — will receive employee status. In fact, Schwab said some forward-thinking universities already are modeling out what this dynamic would entail, attempting to determine a litany of known and unknown variables. 

Asked to characterize the collective sentiment among athletic directors, Schwab paused before choosing three words: “Pessimistic, reluctant acceptance. It’s not a positive feeling. It’s, ‘This is going to happen. We get it. This isn’t going to be good for the schools. It’s not going to be good for the athletes.’ ”

For a visualization of how this could unfold (and certainly nothing is imminent), Schwab painted a picture of three trains on down three separate tracks en route to the final destination where some student-athletes earn employee status. 

The first train: Legislation. A bill was introduced in Iowa that would establish in-state athletes as employees at their universities. Multiple federal bills also are taking aim at the NCAA’s amateur model, including the College Athletes Bill of Rights introduced by Sens. Cory Booker (D-N.J.) and Richard Blumenthal (D-Conn.). Booker played tight end at Stanford in the late 1980s and early ’90s.

The second train: Litigation. The U.S. Court of Appeals for the Third Circuit will consider whether student-athletes are employees due minimum wage and overtime in an important class-action lawsuit. Another class-action suit, which primarily seeks damages for the use of student-athletes’ NIL during telecasts, also has an athlete-as-employee application to it, Schwab said. 

The third train: Unfair labor practice charges. The September memo from NLRB general counsel Jennifer Abruzzo — stating that the board views some student-athletes as employees of their schools — served as the ignition point. The College Basketball Players Association in November filed charges against the NCAA. And the National College Players Association filed a complaint last week against the NCAA, the Pac-12, UCLA and USC, contending the government should view FBS football players and Division I men’s and women’s basketball players as employees.

If one of those trains reaches its destination, a segment of student-athletes may achieve employee status. “If any one reaches its destination,” Schwab said, “we’re going to see chaos across the country.”

When and if that occurs, a new dynamic will take shape. Student-athletes would be empowered to collectively bargain for better working conditions, perhaps engaging in revenue-sharing discussions with universities. But schools, in theory, could fire athletes at their discretion and establish other labor parameters. Negotiating would be front and center. Virtually everything would be on the table.

“I can confidently say that gaining employment status is not a windfall for the athletes,” Schwab said. “If they sit down and collectively bargain, everything they get right now — everything from training to food to the clothes to extra T-shirts and socks — everything is going to be accounted for and there’s going to be a dollar amount next to it. They’re going to bargain all of those things, and most of those are going to be gives. But when it all shakes out, are they going to be in a better place or not? That is going to depend on which athletes we are talking about.”

That could be determined by the amount of revenue produced by the sport. All groups of student-athletes do not possess equal negotiating leverage. Overall, it is “not like you unlock some gravy train of money just because you’re an employee,” Schwab said. “It doesn’t make any more money. You still have the same amount of money. You just have to split it.”

Employee status obviously would usher in a much different era for student-athletes. A markedly better one? That’s uncertain. At the least, it would be a mixed bag. Julie Roe Lach, the Horizon League commissioner, told On3 that “people assume that if we moved to that model, whatever is bargained for would be in addition to what student-athletes currently receive from a scholarship standpoint. As I’ve talked with many, that’s not the case.  … The impact would be, I believe, really negative on the majority of Division I student-athletes because they probably would have less than they have now.”

Myriad questions loom, including — if student-athletes ultimately earn employee status — which individuals would even sit on either side of the bargaining table. Would student-athletes negotiate with universities, the conferences or the NCAA? One school of thought is that conferences would take the lead in negotiating because they hold lucrative media rights deals. And how would student-athletes be segmented: by geography, by sport or another way? Aside from altruistic reasons, Schwab said, it’s hard to think of an economically rational reason SEC football players would want any other athlete group joining their potential union. 

“If I were an SEC football player, and I was the president of the union,” Schwab said, “I’d be like, ‘Hey, guys, we are happy to provide logistical support and political support and relational support. It stops when it gets into our revenue sharing with our schools.’ ”

Schwab has been encouraging athletic directors to engage in discussions with their coaches now. They need to be prepared if a student-athlete says, “ ‘Hey, I just got this union card, what do I do?’ If a coach says, ‘Throw it in the trash,’ or worse, ‘If you sign that card, you’re never playing again,’ well, now you have another claim on your hands because that is illegal. These coaches need to be educated on what this is, and they need to know where to go with these sorts of questions because it is happening right before our eyes.”

No one knows when it all could occur or which student-athletes may first be granted employee status. But momentum is building. In the eyes of some school officials, the age of pessimistic, reluctant acceptance is well underway.