Federal labor laws and student athletes

Student athletes: students or employees?

Many argue that student athletes are employees of their institutions – colleges and universities have control over aspects of their lives (e.g., their time spent at practice and competition, how their image is used for marketing initiatives and the apparel they wear), and depending on the program, student athletes may play a direct role in generating revenue through their athletic participation. However, student athletes do not currently meet any definition of “employee” described by the National Labor Relations Act or the Fair Standards Act and as a result do not have the right to unionize.

Proposed legislation

On May 27, 2021, Senators Bernie Sanders (I-Vt.) and Chris Murphy (D-Conn.) introduced a bill called the College Athlete Right to Organize Act. The bill aims to give student athletes the right to unionize by amending the National Labor Relations Act to include in its definition of an employee, “any individual who participates in an intercollegiate sport for an institution of higher education, and is a student enrolled in the institution of higher education” provided they meet the following requirements:

• The individual receives any form of direct compensation, including grant-in-aid (i.e., scholarship, grant or other form of financial assistance)
• Any terms or conditions of such compensation require participation in an intercollegiate sport

If considered employees with the right to unionize, student athletes receiving athletic aid could negotiate hours, working conditions, benefits (e.g., medical care) and pay.

While it is questionable as to whether the bill will be passed into law, it represents another development in the debate over student athletes’ rights, particularly around the right to profit from one’s name, image and likeness (NIL). It also puts additional pressure on the National Collegiate Athletic Association (NCAA) to react.

Challenges

While there are clear benefits of allowing student athletes to unionize (is anyone opposed to the health and well-being of student athletes?), the issue is more complex than it may appear on the surface. Some of the questions that come to light include:

• How would a union be organized and operated? For example, union dues are typically paid by the employee. However, student-athletes are “compensated” through grant-in-aid and do not receive a traditional “paycheck” from where dues could be deducted.