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What could college athlete collective bargaining actually look like?

I asked a law professor who wrote an increasingly important paper on it

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Earlier this month, Notre Dame AD Jack Swarbrick told Yahoo! Sports that he believed the time was right for college athletes to collectively bargain. I even wrote that I agreed with him, even though I questioned the timing of that revelation.

But one of the many problems with that scenario is that to collectively bargain, under current US labor law, athletes would need to be considered employees, something that virtually all P5 university presidents do not want to happen (and if we’re being honest, something many current athletes also do not want to happen). A collective bargaining solution that would not require employee recognition would require a special sort of legislative carve out.

In the story, Yahoo! pointed out this isn’t a completely novel idea, citing a paper written by Illinois law professor Michael LeRoy in 2012.

That paper, in the Wisconsin Law Review, can be found here. Earlier this week, I called LeRoy to talk about it.

If that link is busted in your email browser, here’s the name of the paper

A major theme of the paper concerns the idea of “union substitution effects.” LeRoy argues that when an industry faces a credible threat of unionization, it often increases worker representation in decision-making or improves worker benefits. A legislative carve-out that would allow athletes to bargain over a few specific components of their experience, such as health care, player mobility, and protection from abusive coaches…all without creating a full-on professionalized union that bargains over wages and salaries. A way of taking a bit of steam out of the kettle, so to speak.

Unionization efforts don’t even necessarily have to be completely successful to trigger a union substitution effect. LeRoy pointed to recent efforts by Dartmouth Men’s Basketball as a potential test case. “Even if their effort to be fully recognized by the NLRB and bargain isn’t completely successful, could their effort lead to changes in the Ivy League athletic scholarship policy?” he wondered. Given that tuition at Dartmouth is north of $70,000, awarding athletic scholarships “would be a major success” for the movement.

I believe much of the paper is simultaneously ahead of its time, and significantly dated. Many of the arguments that LeRoy lays out that demonstrate how the college athlete’s relationship with schools deeply resembles employment would have been considered out of the mainstream or radical in 2012, but conventional wisdom in 2023. Many of the deficiencies that he flagged as ripe for addressing via collective bargaining, like cost of attendance and inter-conference transfers, have also already been addressed.

But the idea of actual professionalization of college athletes, or at least some of them, is much more mainstream than it was in 2012. While he agreed that much of the research holds up, “I probably wouldn’t write this same paper today”, LeRoy told me.

The idea of industry-specific labor law carve-outs isn’t unique to college athletics, he argues

LeRoy told me that just this week, he was testifying during debates over unionization efforts for Illinois legislative aides, the (typically low-paid) employees who do much of the grunt work of research and drafting of legislation. LeRoy told me that one idea that Illinois lawmakers were considering would be to recognize their union but to prohibit the aids from striking during certain times of the legislative calendar, a carve-out that obviously does not apply to workers in other sectors.

“We’ve had these laws for railway workers, some states have them for agricultural workers that aren’t covered under other labor legislation, and other states have them for various classes of public employees.”

The exact scope of that carve out, of course, would depend on lawmaker haggling. It could mean anything from limiting what could be covered under collective bargaining, to the scope of the bargaining unit, to limiting when (or if) strikes or labor action could happen, and more.

Is this actually needed to bring about additional change for athletes?

To play devil’s advocate here for a second, I pointed out that many areas that he theorized athletes may want to bargain over have been addressed in the last decade without collective bargaining, thanks to lawsuits, state legislation, and NCAA policy shifts. Plus, the NCAA already has Student-Athlete Advisory Councils that share concerns with management and have roles in national governance. Couldn’t all of that be enough?

LeRoy told me that while he thinks SAAC groups do good and important work, there isn’t evidence to suggest that they truly have a meaningful enough impact on governance to play this role. He specifically cited failed athlete mobilization campaigns during the COVID year, and how SAAC groups, nationally, were not major cogs in drafting return-to-activity policies. I’ve heard other economists, (not LeRoy) compare SAAC groups to more of a “company union” type relationship, one that produces more of a veneer of collaboration rather than actual collaboration.

Now, collective bargaining, both in a formal employment setting and outside of it, does carry risks. Without a very strong and well-organized union, there’s always the risk that athletes could lose some of the current benefits they enjoy, or that management could secure a very friendly contract. Professional athlete unions have certainly struggled in this department before, and building solidarity and cohesion in a college athlete group may be more difficult than with almost any other union (or proto-union) in the world.

Depending on how a carve-out was written, there’s the potential that some of those athlete risks could be mitigated, in exchange for limitations on what may fall under the scope of bargaining.

As with just about everything, the devil is in the details. But since we’re rapidly heading in this direction, those working in college sports leadership, or who purport to represent athlete interests, ought to work on fleshing out some of those details, before the courts, or poorly-informed lawmakers, do it for them.

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Last quick housekeeping note:

By the time you read this, I’ll be up in the air and on my way to Boise. I’m interviewing a few folks involved in Boise State athletics, but I will have a little unscheduled time and would be happy to chat if you’re in the neighborhood, especially if you’re going to the game.

I will also be in Pullman, Washington on Sunday, Monday, and Tuesday AM. I am going to try and squeeze in a quick visit to Idaho during those days as well. I’m going to guest lecture in at least one Washington State class but have a pretty flexible schedule otherwise if anybody wants me to come by and visit. My only other hard and vast obligation, besides hopefully chatting with some folks in WSU athletics and around the Pullman business community.

My email is Matt @ Extrapointsmb dot com if you’d like to link up while I am visiting the Pacific Northwest. If you have questions that could only be answered by me visiting and talking to folks at Boise State, Idaho, and Washington State, I’d love to know those too.

If you’d like to buy ads on Extra Points OR in ADS3000, good news! They’re affordable, and we still have openings for this year. Drop me a line at [email protected]. If you have news tips or FOIAs you want to share, I’m at [email protected]. Otherwise, I’m at [email protected], @MattBrownEP on Twitter, @ExtraPointsMB on Instagram, and @MattBrown on Bluesky

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