College athletes should form union
College athletes, your moment of ultimate leverage has arrived. It’s time to use it.
All over the country right now, coaches and administrators are desperately scrambling to figure out how to get the college football season going so that their nine-figure athletics budgets can remain intact and a flow of cash that relies on the work of unpaid labor doesn’t get turned off forever.
They’re doing it with limited information about what will happen when hundreds of college athletes start congregating around dorms and weight rooms again, and they’re doing it without the input or consent of anyone whose sole responsibility is to advocate for the athletes and their safety.
Essentially, as college administrators and coaches call for football players to return to campus in early June and plot for a season beginning on time in September, they want you to be a science experiment. Don’t agree to it – at least not without getting something in return.
There’s never been a more opportune time in the history of the NCAA for athletes to form a union and wield real power to negotiate their compensation, their working conditions and their rights.
It’s long overdue. And it would benefit the athletes and the schools, whose resistance to collective bargaining has led them down the path of endless antitrust lawsuits and feckless attempts to placate lawyers and courts that only serve to blur the lines of amateurism and expose how arbitrary the entire system is.
So instead of sitting down to negotiate rules that everyone can agree on, we have decades upon decades of evidence that college athletics will only give athletes a better deal when pushed to the brink by some type of threat. We’re seeing it now, in fact, in the debate over how athletes can monetize their name, image and likeness – an issue that was basically ignored for years but is now suddenly on the fast track to reform after state legislatures started passing laws. Even with that, the process is going to be messy and controversial because the NCAA is trying to dictate instead of negotiate.
But relative to a pandemic, that’s small stuff. This is potentially life and death. And the idea that athletes don’t have a seat at the table to help determine how and when college football comes back should be frightening to every family considering whether it’s smart to send their kid back to an offseason training program in a few weeks.
More than two months into our COVID-19 world, has any person with a level of responsibility in college athletics said anything that makes you think, “We got this?” I haven’t heard it, which isn’t an indictment of anyone in particular but rather an acknowledgement that this is a complicated problem without a lot of great answers.
But it also means bringing football players back to get ready for a season is based less on any real confidence about being able to keep them safe and more about a hope that everything’s going to be OK because the weather’s warm and the virus largely hasn’t been fatal to younger people.
Is that really good enough?
Maybe it will be, at least in the short term. But what we’ve learned mostly during this period is how much we don’t know about COVID-19, and it’s clear that sports returning safely won’t be a linear task. There are going to be starts and stops and things that go wrong or need to be adjusted.
If Major League Baseball and the NBA are actually able to pull something off this summer to get their seasons going, it’s only because cooperation and negotiation with the players’ unions leads both parties to a place where the leagues feel comfortable with a plan and the players have collectively agreed that the reward is greater than the risk.
But college athletes have no such ability to demand certain safeguards or expanded health care or that they’re getting something more than their scholarship for playing football during a pandemic.
As Ninth Circuit Court of Appeals Judge Milan Smith wrote in a concurring opinion Monday upholding a district judge’s earlier ruling against the NCAA in an antitrust case over compensation limits, “the treatment of Student-athletes
is not the result of free market competition. To the contrary, it is the result of a cartel of buyers acting in concert to artificially depress the price that sellers could otherwise receive for their services. Our antitrust laws were originally meant to prohibit exactly this sort of distortion.”
Despite multiple courtroom losses on antitrust issues, which will only beget more cases in the future, the NCAA has steadfastly refused to entertain the idea of unionization, saying it would turn college athletes into employees.
In 2014, a group of Northwestern football players filed paperwork with the National Labor Relations Board. Backed by college athletes’ rights activist Ramogi Huma and the United Steelworkers, they won a regional NLRB hearing for the right to organize as employees, leading to a team secret ballot vote over whether to form a union.
Ultimately, the ballots were never counted as the federal NLRB surprisingly overturned the earlier ruling – but not on the argument that players weren’t employees. Instead, the NLRB said that Northwestern players forming a union would create a competitive balance issues in Division I because it doesn’t have jurisdiction over public schools.
But the politics around college athletes’ rights have changed dramatically in the past five years. The NCAA has few defenders in Washington, and members of Congress from both parties are pushing hard for a name, image and likeness plan. As the NCAA seeks some type of antitrust exemption from Congress so that it’s not getting dragged into court every year, it’s very clear that the the price for that should be a national union.
Otherwise, all you’ve got are the NCAA and conference commissioners saying “Trust us,” and there is no evidence they are worthy of that trust. That’s not a shot at anyone’s character. Their job is to make money for the schools. Especially now, as athletic departments face a desperate fiscal situation if games are canceled or played without fans.
If I were advising college football players, I would tell them not to show up on campus this summer – not until they are allowed to unionize and negotiate for what they need to play safely.