Strong Opposition Raises to Bill Denying Student Athletes Employment

Today, the House Committee of Education will meet for a markup hearing of the Protecting Student Athlete’s Economic Freedom Act (PSAEFA). Introduced by Rep. Bob Good (R-VA), the bill most notably enshrines that student-athletes are not to be deemed employees of the NCAA, member conferences, or respective universities.

This is the furthest stage a Federal NIL bill has gotten in Congress. The PSAEFA is an attempt to quell the uncertainty that looms over collegiate sports brought on by recent losses of governance and autonomy of the NCAA. The timing of this legislation signals the immediacy and importance for the Republican party and the lobbyists of the NCAA and its member conferences and institutions to resolve the uncertain future of the collegiate sporting model.

Throughout the 2020’s the NCAA has had its authority slowly chipped away by the Federal Courts through a series of antitrust lawsuits. This has created systems of covert NIL payments used as player salaries, transfer portal recruitment, and a reduced capacity to create and enforce regulations governing player eligibility. Most recently, the NCAA has agreed to settlement terms in the House v. NCAA class action lawsuit that would revoke a foundational pillar of the NCAA, amateurism. The new system under the House settlement, which still has hurdles to climb before implementation, would for the first time, allow student-athletes to receive direct compensation from the schools they play for in a revenue sharing model.

What has changed in college sports over the last five years can most aptly be defined as concepts of professionalism. Deregulation of NIL and the transfer portal has created a system of perpetual free agency where every year athletes can “enter the portal” and see what institution will offer them the most NIL money. The mere issuance of NIL payment, as a salary, is a professional concept. Pay-for-play by its definition, turns an amateur athlete into a professional. Now, what is the one thing missing from this equation – why are collegiate sports still not the same as American Professional sports?Fundamentally, the answer is simple: student-athletes, unlike pro athletes, are not employees. 

The PSAEFA seeks to maintain non-employment, the one fundamental difference between professional and collegiate sport that remains. Under the National Labor Relations Act a special privilege is granted towards those deemed employees, unionization. This would mean that if student-athletes can be deemed as employees, which appears more likely under the system proposed in the House settlement, student athletes will gain the ability to unionize. In the not-too-distant future, collegiate players (most likely Power 4 football players and Division I Basketball Players) could have the power to collectively bargain for their working conditions which includes salary, hours, discipline, and any other factor that effects labor in the workplace. 

Unions are the backbone of professional sport in America. Every major American sport has a player’s union that represents the interests of athletes and leverages the power of collective action against league management. Why are these establishments important, for one, unions are exempt from antitrust scrutiny. A Collective Bargaining Agreement (CBA) is a document that allows management to engage in behaviors that under any other circumstance would be a violation of antitrust law. For example, look at the salary cap in the NBA. Without a union in place, the league could not restrict the spending ability of a team on its workforce, nor could it meddle in the individual salary of certain players, enforcing concepts like max and super max contracts. Employment, and by extension, unionization is the linchpin of American sport and gives legal immunity to concepts such as drafts, free agency and age restrictions.

The absence of unionization, in the NCAA’s case, would grant them autonomy in deciding certain working conditions of collegiate athletes. Without the presence of a union in collegiate athletics, the NCAA can maintain its unilateral decision-making power in areas that have remained untouched by federal courts in antitrust legislation. The last pillar of defense standing for the antiquated NCAA structure is the denial of employment opportunities.

However, the writing appears to already be on the wall for the NCAA. Victories for the pro-employment camp have been frequent: the National Labor Relations Board has already determined that basketball players at Dartmouth are deemed employees and a similar case is being evaluated to determine weather the football and men’s and women’s basketball players at the University of Southern California also meet this designation. Additionally, the Johnson v. NCAA case in the Third Circuit aims to designate all athletes as employees and provide protection under the Fair Labor Standards Act.

Today, hours before the mark up hearing, opposition to the bill cried loudly. The AFL-CIO, the largest federation of labor unions in the United States, wrote a letter strongly disapproving of the PSAEFA. Penned by AFL-CIO President Liz Shuler, the letter stated that “the fallacy that every college athlete is merely a student has finally begun to crumble,” and that within the Johnson case the NCAA seeks to deny student-athletes the right to have their labor evaluated by courts, a right every other worker in the nation maintains.

The AFL-CIO boast many member organizations involved in professional athletics including the MLBPA, NFLPA, NHLPA, WNBPA, and more.

The immediacy of Rep. Good’s legisaltion is astute, for those who want to allow the NCAA the ability to maintain its autonomy, it is now or never. It is necessary to highlight that unionization will not be a simple task. Implications to Title IX Equity, the mix of private and public unions, and determinations of bargaining units make the student-athlete employment process more complex than its parallel at the professional level.

The NCAA and its policies of old seem to be in the rear-view mirror. Federal decision making on employment status, by way of the Judiciary or Capitol Hill, will direct the construction of a new collegiate sport ecosystem.