June 27, 2022

Volume XII, Number 178


June 24, 2022

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New Federal Legislation Proposal Authorizes Student-Athletes to Unionize

A group of Democratic U.S. Senators, led by Senator Chris Murphy (D-Conn.) and Senator Bernie Sanders (D-Vt.) have introduced the College Athlete Right to Organize ActThe proposed legislation would amend the National Labor Relations Act (NLRA) and provide student-athletes collective bargaining rights, regardless of any existing state law restrictions.

Regarding his proposed legislation, Senator Murphy stated, “Big time college sports haven’t been ‘amateur’ for a long time, and the NCAA has long denied its players economic and bargaining rights while treating them like commodities.” He added,

“That’s why I’m introducing the College Athlete Right to Organize Act, which finally recognizes college athletes as employees and allows athletes to collectively bargain with their colleges and across conferences.

Having the right to do so will help athletes get the pay and protections they deserve and forces the NCAA to treat them as equals rather than second-class citizens.”

This proposal far exceeds the student-athlete rights previously sought and currently covered by the College Athlete Economic Freedom Act (“Freedom Act”), which was introduced by Senator Murphy and U.S. Representative Lori Trahan (D-Mass.). The Freedom Act would protect the name, image and likeness rights of current collegiate student-athletes. Senator Murphy’s proposed legislation provides jurisdiction to the National Labor Relations Board (NLRB) to exercise authority over all institutions of higher education that sponsor intercollegiate sports in relation to collective bargaining and labor disputes.

The latest bill proposes that the definitions of “employee” and “employer” under Section 2 of the NLRA be rewritten and amended to consider any college-athlete who receives a grant-in-aid or other compensation from a college or university to participate in intercollegiate athletics to be an “employee” of the respective college or university, whether a public or private institution.

Student-athletes would be recognized as “employees” of the institution and thereby entitled to exercise the rights of employees guaranteed by the NLRA, including the right to seek redress for alleged violations of those rights by their university “employer” through the NLRB. Those protected rights include, for example, efforts to form a union among members of a sports team, challenging alleged discriminatory or retaliatory conduct by coaches, administrators or others in response to a student-athlete’s protected actions.

According to the bill’s language, this provision only recognizes the employee-employer relationship that its proponents assert already exists between college athletes and their respective colleges or universities, and it helps athletes to successfully organize and collectively bargain over their compensation, hours, working conditions, and other related mandatory subjects of bargaining.

Possible topics of bargaining could include practice time, dates and content, travel accommodations, overtime compensation and team rules. Unionized student-athletes would, of course, also have the right to engage in a strike or other job action.

While far exceeding the anticipated granting of name, image and likeness marketing rights for student-athletes, the proposed bill seeks to introduce of a specific “pay for play” process, authorizing student-athletes to negotiate for specific compensation and benefits for playing their sport.

Senator Sanders commented on his proposal,

“College athletes are workers. They deserve pay, a union, and to own their own name, image, and likeness. We cannot wait for the NCAA to share its billions with the workers who create it.”

While treating athletes as employees, the bill would seek to exempt them from paying income and payroll taxes for the scholarship, grant-in-aid or other money they receive from the institution. The bill provides that “nothing in this Act shall change the current tax status and treatment of any compensation college athletes receive, otherwise create additional tax burdens that do not currently exist due to an athlete being considered an employee, or affect college athletes’ federal financial aid status as well as any current reporting requirements within the Internal Revenue Code.” It is unclear if the institution would have to make social security, Medicare or other payments on behalf of its new employees to exempt them from paying income and payroll taxes for the scholarship, grant-in-aid or other money they receive from the institution.

The proposed College Athlete Right to Organize Act would also authorize the NLRB to recognize the creation of multi-employer bargaining units composed of student-athletes from multiple schools within a single conference. This would allow student-athletes from various schools to join together to negotiate collective bargaining agreements to “establish uniform rules and standards related to compensation, hours, working conditions, and other related mandatory subjects of bargaining.”

This NCAA said the Murphy-Sanders bill would “directly undercut the purpose of college: earning a degree.” It added that “turning student-athletes into union employees is not the answer.”

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 147

About this Author

Gregg E. Clifton, Collegiate Sports Attorney, Jackson Lewis, disciplinary hearings Lawyer
Office Managing Principal

Gregg E. Clifton is Office Managing Principal of the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as one of the editors of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major...

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Patrick Egan, Labor Law Attorney, Jackson Lewis, Boston Law Firm
Patrick L. Egan

Patrick L. Egan is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Mr. Egan works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Mr. Egan has represented employers in card-signing efforts and representation and decertification campaigns. He has conducted union awareness and positive employee relations training for hundreds of companies and employer groups. He has also assisted dozens of employers to preempt, prepare for and defend against union corporate campaigning....