Even If The College Athlete Right to Organize Act Doesn’t Become Law, The Line of Demarcation Is Now Evident

By Derek Helling

Photo from NCAA.com

Regarding the future of college athletics and that industry’s status in the eyes of the United States Congress, there is no more middle ground. Either members of Congress support giving college athletes the same rights that all other adults in the USA enjoy, or they choose to perpetuate the exploitation of labor and the violation of civil rights ongoing in the industry.

In similar fashion, leaders in the college sports industry and state lawmakers have to take a stand one way or the other. While Congress may not force drastic reforms immediately, its action will expose who is truly in the industry for the athletes and who feigns that motivation to enrich themselves.

What Congress did this week

On Thursday, May 27, multiple members of Congress announced their joint introduction of a new bill aimed at drastically reforming the relationship between campus athletic workers and the colleges/universities that employ them. Nearly completely composed of members of the majority Democratic Party, those Congresspeople are:

  • Rep. Jamaal Bowen (D-N.Y. 16th)
  • Rep. Andy Levin (D-Mich. 9th)
  • Sen. Chris Murphy (D-Conn.)
  • Sen. Bernie Sanders (I-Vt.)
  • Rep. Lori Trahan (D-Mass. 3rd)

The “College Athlete Right to Organize Act” would amend the National Labor Relations Act to define all/any athletic workers as employees of a college/university if they receive any grant-in aid from that institution. While that would seemingly exclude non-scholarship athletes from inclusion on its face, the rest of the bill could loop them back in.

The bill would also explicitly grant athletic workers the right to collectively bargain the terms of their labor with athletic conferences that institutions belong to. In theory, non-scholarship athletes could apply for membership in such a union. How the bargaining element would affect athletic workers at colleges/universities that do not belong to an athletic conference is something that the bill’s language will have to work out as well.

Regardless of the matters left to interpretation, the overarching theme of this bill is drastic reform on the behalf of labor. The potential impact of the bill is best evidenced by the NCAA’s immediate reaction to its introduction.

The NCAA doubles-down on protecting its chattel economy

A statement by the NCAA was thick with the association’s flawed logic and conveniently deceptive statements.

“College athletes are students and not employees of their college or university. This bill would directly undercut the purpose of college: earning a degree. The NCAA and its member schools support student-athletes through scholarships – many of which cover their full cost of education debt free – and numerous other benefits. NCAA members also are committed to modernizing name, image and likeness rules so student-athletes can benefit from those opportunities but not become employees of their school. We will continue to work with members of Congress to focus on issues that align with our priorities. But turning student-athletes into union employees is not the answer.”

There are several problems with the argument the NCAA makes here.

Among them:

  • “College athletes are students and not employees…” – There is nothing that precludes in either a legal or practical sense a person from taking classes at a college or university while also being employed by the same institution. Thousands of people do exactly that on an annual basis.
  • “This bill would directly undercut the purpose of college: earning a degree…” – If the NCAA is so concerned about athletics undercutting the earning of a degree, why does it schedule championship events during finals and allow its member institutions to dictate what degree programs and classes athletic workers can choose? Additionally, if “amateurism” is such a strong elixir for educational outcomes, why do most American football and men’s basketball players at its member institutions not graduate?
  • “The NCAA and its member schools support student-athletes through scholarships….” – Most campus athletic workers do not get full cost of attendance and do not graduate debt-free. Some campus athletic workers do not get any grant-in-aid whatsoever. Those workers are still denied not only their rights to their persons but a share of the revenues their labor creates among other tenets of employment.
  • “NCAA members also are committed to modernizing name, image, and likeness rules…” – This is the same song-and-dance this organization has trumpeted for nearly two years with zero actual action. In reality, the NCAA and its members have had over five decades to complete this “modernization.” The line is tired and without merit.

Why are the NCAA and its member institutions resisting fully recognizing campus athletic workers as the employees of those institutions they already are? Simply put, they don’t want to share the billions of US dollars in revenues that labor generates. Congress might have to force them to do it because leaders in individual states have been among those feigning concern for athletes while actually acting to hurt their best interests.

What about state-level bills/laws?

So far, none of the bills that are up for consideration in individual states or the laws that have already been passed but have yet to take effect define campus athletic workers as employees of the colleges and universities within their borders. Much to the contrary, most of them actually explicitly state that those workers are not employees of those institutions.

Most of the bills/laws do aim to give collegiate athletic workers limited rights to monetize their own images, likenesses, and names, but impose constraints on that usage that no other adults including the athletic directors and coaches at the same institutions in those same states face. For example:

  • Some states give institutions the right to void contracts between athletes and third parties if they deem it conflicts with a sponsorship contract of their own
  • Georgia gives its colleges/universities the right to take up to 75% of athletes’ earnings and disperse it as they see fit
  • Texas’ bill allows its institutions to prevent athletes’ hiring representation
  • Colorado’s law gives institutions the power to ignore any tenet of the statute if it conflicts with NCAA by-laws

What every single bill and law at the state level have in common is that they all lack any enforcement mechanism. There is no state agency or official tasked with ensuring that colleges/universities are in compliance.

Furthermore, none of them contain any prescribed penalties for institutions continuing to violate workers’ civil rights in this way. If any college/university were to violate them, the onus would fall on the victim(s) of such treatment to bring a civil action against the institution at her/his/their own expense in state court.

These laws and potential laws are not just impotent in advancing the interests of campus athletic workers within the respective states. They are counter-productive, as evidenced by the wide support of athletic directors at NCAA-member institutions within the borders. They only work to codify the exploitation of these workers as protected activity under state law.

Exploitation goes deeper than just the money

If the only way in which these workers were being exploited was financially and through the compromising of the very educational experience the NCAA claims it is trying to protect, that would be sufficient reason for these reforms. The unfortunate truth is that the violation of these workers goes far deeper than just economics and education.

The NCAA has zero standards for athletes’ health and safety. Instead, it leaves the member institutions to police themselves on those issues.

The unregulated landscape has produced the harrowing stories of sexual abuse under figures like Larry Nasser and Richard Strauss, athletes playing through injuries out of fear of losing their food/scholarships/shelter, and suffering emotional/verbal abuse at the hands of coaches while athletic departments protect those coaches.

While the NCAA does carry health insurance for athletes participating in national championship events and many member institutions carry some level of coverage for workers while they are performing their duties, such coverage falls woefully short of standard workers compensation. Additionally, it expires after a period of a few years even for athletes who sustained severe injuries on-the-job.

Since the NCAA and its members have chosen not to protect athletic workers from abuse and injury, it’s absolutely essential to give those workers the power to bargain for labor conditions that will guarantee them a safe workplace. Freedom from abuse and on-the-job injuries plus compensation for those injuries if they occur are rights of every worker in the US.

So what happens now?

It’s too early to tell how much support the College Athlete Right to Organize Act has in Congress at large. While the Democrats hold a majority in both chambers of Congress, there remain ways for Republicans to obstruct the passage of such a bill and it’s no foregone conclusion that all Democrats are on board yet.

To a certain degree, though, this bill has already accomplished something merely with its introduction. It has dispelled the myth that those who are advocating merely for limited NIL usage for athletes and no further changes to the system are on the athletes’ side in this fight. Those are not even half-measures. They are anti-labor and pro-exploitation.

As this legislation moves forward, constituents of every member of Congress will plainly see where their elected officials stand on matters of human dignity and the value of labor. To the same end, alumni of every college/university won’t be able to avoid the positions of the athletic directors/chancellors/coaches/presidents at their alma maters on the same subjects.

Even for fans and other people connected to these institutions, with this bill’s introduction, the time for compromise or silence is over. You’re either with campus athletic workers on these issues or you’re with those who have exploited them and plan to continue to do so to enrich themselves. Choose wisely.

Derek Helling is a freelance journalist who splits his time between Chicago and Kansas City, Mo. He is a graduate of the University of Iowa, earning undergraduate degrees in Journalism and Sports Studies. The list of companies who have had the audacity to buy and make public his words include The Equalizer, FOX Sports, Legal Sports Report, and Ozy among a bunch of others he can’t remember because he’s almost 40. Recently, Helling is most proud of his contribution of a chapter on the NFL to Kendall-Hunt’s undergrad textbook Sport Finance: Where the Money Comes From, and Where the Money Goes and the fact he has somehow managed to keep a pair of Munchkin cats alive for five years. If you hate fun like he does, you can follow him on Twitter @dhellingsports.

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