(CBS Local/CBSLA)- The college football season, if there is one, will look wildly different this year. With the Big Ten and Pac-12 deciding not to play in the fall, 53 of the 130 schools in Division I have decided not to play football this fall due to concerns about the COVID-19 pandemic and its long-term effects for players. But, the changes in the sport are likely to be wider ranging and more far reaching than just not having football this fall.
That change is due to the growing push from players within the Power 5 and the American Athletic Conference in the #WeAreUnited and #WeWantToPlay movements. While the two movements started from different places, we saw them come together over the weekend with a list of demands, the last of which made sports law professors and sports media members’ ears perk up.
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“Ultimately create a College Football Players Association representative of all Power 5 conferences.” That line would point towards a unionization attempt from players. We’ve seen something along those lines before when Kain Colter led his Northwestern teammates in a push to unionize back in 2014. That effort came up short. So, what would be different this time?
“The biggest difference is, at least on the surface, we don’t really know this yet, but on the surface it appears this is going to be a collective effort across the Power 5 conferences and those 65 schools who tend to be the top revenue generation drivers at least in college sport,” said Alicia Jessop, professor of Sports Law at Pepperdine and writer for The Athletic in an interview with CBS Local’s Ryan Mayer.
That collective nature of the attempt to organize makes this a broader scope than we previously saw. That’s obvious to point out but, it presents a new set of hurdles. The National Labor Relations Act, which is the law under which entities unionize in the U.S. only applies to employees of private sector employers, Jessop points out. That becomes an issue when looking at the Power 5 because many of the 65 schools in those conferences are public institutions. So, how do the players get around that?
“The question then becomes, if these people are employees, that’s the first hurdle you need to jump to unionize. Are these people employees? If they are employees, then who is their employer,” said Jessop. “You can see the plausibility of these young men through their legal representatives that come in pro bono to represent them, raising what’s called a joint employer argument where they will assert, the university is my employer, the conference is my employer and the NCAA and conference being private sector employers.”
That seems simple enough and plausible enough. While the players play directly for their university programs, there is an argument to be made that overall they play for the conference and, by extension the NCAA as part of its championship structure. But, Jessop points out, there is still a large obstacle to potential unionization even if those legal arguments are made.
“I don’t want to get on here and send a message that yeah they’re going to be able to unionize because they’re in a group because here’s the key thing Ryan, what has changed since the 2014 attempt? Other than the football players coming together what has changed? The big thing that has changed is, who’s leading the National Labor Relations Board. These are people who are appointed to their position by the President of the United States,” said Jessop. “And in 2014, the President of the United States was Barack Obama, a more union-friendly president, who appointed more union-friendly directors. Now our president is Donald Trump. Our president has been sued by multiple unions claiming he takes action that’s arguably opposed to the National Labor Relations Act. He has now appointed the directors of the board. This is not a clear cut journey for these men.”
While Jessop believes, based on the statements of players, they will attempt to unionize first. But, if that doesn’t work, Jessop says there is still a way to organize players across the Power 5 and have bargaining power from the standpoint of names, image and likeness rights.
“The real value in a college athlete’s name, image and likeness rights comes in their ability to do what are called group licensing deals. With a group licensing deal, you could hypothetically go back to EA Sports and say hey, we are willing to appear in your very popular, now-defunct video game series, but we want a part of the profits,” said Jessop. “What a trade association would allow them to do is deal with the hard part of group licensing which is getting the group together having them all sign over their rights to the trade association and allow them to go into the marketplace to find the best deal. At a minimum that’s what we’re going to see emerge. We were going to see that before the pandemic struck and we needed clear return to play protocols.”
A trade association does have its limits, Jessop notes, in that it doesn’t have the same sort of bargaining power or teeth as it were that a union does. But, it could still the most difficult part which is getting the players all under one organization. And, in a moment like now, when the player’s health and safety has been a key focal point moreso than at any other point, an organized body fighting for player’s health care rights is essential. It’s not that the NCAA or conferences don’t have that in mind, but Jessop says, there is a conflict of interest for the medical professionals they employ.
“If they want to do this, they need to do it now. Knock on wood, we do not have another pandemic in our lifetimes and this is a once in 100 years experience. If they want to galvanize and they want to move forward, this is the time,” said Jessop. “Who in this discussion has that focus as their top focus that actually has leverage at the bargaining table? And unfortunately, despite health and safety being part of the NCAA’s mission, despite there being health care professionals employed by every team, there’s nobody at the table who can say that’s my primary concern because they’re all employed by the NCAA. So, there’s conflicts of interest.”
Those conflicts of interest are why Jessop hopes that, regardless of what path forward the players choose to take, they are able to push for an independent medical council which can review the return to play protocols for athletes. In addition, Jessop says that we need to continue to have a real conversation about whether athletes are truly getting the educational experience that is thought to be the value of a full athletic scholarship. Are athletes truly receiving the full value of that scholarship in the same way their peers at the school are? And is that value equal to the value that their play (i.e. labor) provides for the conferences and NCAA?
“Not just return to play protocols for pandemics but for whenever a player is injured whether it’s an ACL tear, concussion or hamstring strain. And, we need to continue to have a discussion about the financial impact of college sports versus the value proposition that an athlete receive in a scholarship,” said Jessop. “Scholarships are very valuable. There are many American families feeling the pinch during COVID-19 that would love nothing more than a full tuition scholarship for their child. But, we have to examine whether college athletes are getting the full value of that scholarship when they are spending 60+ hours per week on sport-related activity. The big changes I hope for are more effective athlete-centric and athlete focused healthcare and then a real open, honest discussion on what is the value of an athletic scholarship and are these college athletes actually capturing and engaging in the same educational experience as the band geek or the normal college student.”