Todd’s Take: College Athlete Collective Bargaining Is An Answer That Raises Questions

When a federal judge finally approved the House settlement earlier this month, she created a structure that will guide college athletics for the next decade.

Power conference schools, and any other school that opts in, will devote 22% of their athletic department revenue, or a current $20 million cap, to paying athletes directly. NIL deals are still possible, but only after those more lucrative than $600 go through a clearinghouse. Roster limits have been set for sports to replace scholarship limits.

All done and dusted, right? College athletics can enjoy the dawn of a new day.

Pardon the laughter. The House settlement does provide some structure – and some structure is better than none – but nearly every part of it is vulnerable to more legal challenges.

The clearinghouse might be challenged as an artificial governor on free enterprise. Roster limits may be challenged as arbitrary. The cap schools will use to pay athletes is not subject to Title IX rules, so they can devote the majority of it to football and men’s basketball – the two revenue sports. This has already been challenged in court as a violation of Title IX rules.

The distinction between the participatory aspect of Title IX versus the economic forces that shape college athletics continue to come to a head. That is going to be an interesting fight.

People around college athletics know the House settlement isn’t perfect. It was an expedient to: a) create some sort of structure as court cases around the country erode the attempted guard rails of the past; and b) avoid an extinction-level payment to plaintiffs in an antitrust suit the NCAA and power conference schools would have almost certainly lost.

House will be picked and probed by continued lawsuits. So what might be a more permanent solution?

Many have surmised, myself included, that the payment structure by schools that House created has opened the door to the acknowledgement that student-athletes are employees. And if they’re employees, then collective bargaining can be implemented to set the playing field for both athletes and institutions.

I’ve come to this conclusion myself at times. Let’s give up the pretense and just face reality. Institutions can bind players to a contract and vice versa.

It sounds reasonable … until you start to think it through.

Collective bargaining works in pro sports because there’s no question the athletes are employees and can form a union to negotiate their rights.

That’s not the case yet in college athletics – colleges and the NCAA have fought the idea that college athletes are employees tooth-and-nail. They’ve sought congressional relief to cement the idea that college athletes are not employees.

Whether the NCAA and its partners are successful is a dubious prospect, but it still begs the question that even if college athletes were deemed to be employees, who negotiates on their behalf and with whom?

It is possible a players’ union could form for college athletes, but who would it serve? The needs and commercial value of football players are vastly different from those of Olympic-sport athletes. The disparity in commercial worth among college athletes is nothing like that of pro athletes.

If formed, who would a players’ union negotiate with? Unlike pro sports, individual colleges have different economic realities, different state laws, etc. It’s conceivable a conference could negotiate on behalf of its members, but again, the needs and demographics of Ohio State are a lot different from Northwestern’s. Would university leaders cede budget control of their individual athletic departments to a third party? Pro franchises barely tolerate it, so I kind of doubt universities would be amenable.

Then there’s the competitive aspect. Part of the reason there is little structure to college athletics right now are the colleges themselves. They’re greedy and don’t want to concede any edge they might have for the greater good. When a rule pops up that puts a brake on their ambition, they sue their way out of the rule.

Do you think a SEC or Big Ten school is going to countenance putting themselves at a competitive disadvantage by negotiating a collective bargaining agreement that is unfavorable? Imagine the hue and cry from boosters if the home team stunk it up on the football field because they were encumbered by a bad collective bargaining agreement.

This will also not be lost on player agents, who won’t want their client earnings (and theirs) potentially hampered.

There are also issues like right to work, etc., and other legalese that might crop up. I’m no labor lawyer, the only bar I could pass has a Schlitz bottleneck sitting on top of it, so I asked Mit Winter, a college athletics attorney at Kennyhertz Perry LLC, about some of the questions I’ve raised.

Winter said one solution is for a private entity to operate the teams in place of the university. That eliminates the dynamic of the athlete-school connection and the issue of public-private school conflicts.

Winter also said private entities could be formed to run individual sports (such as the recently formed Kentucky LLC) and they could collectively bargain with a players union.

That all sounds kosher from a legal point of view, but it sounds like too much, too soon for the consumers of the product – the fans.

I already detect fan backlash to the transfer portal and NIL. If collective bargaining is the bridge to further professionalism of the college product, will fans support it? Some would, some may not. The further you take the “college” out of college athletics, the riskier it gets on whether consumers will continue to support it.

College athletics has carved out a unique, and yes, problematic system over time, but a lot of fans liked it and don’t want radical change whether it’s warranted or not.

None of this is to say that collective bargaining can’t work or that it’s not desirable at some point, but it’s not a panacea. If it did some day happen, it would likely be a torturous road to collective bargaining, complete with fights and minutiae that might continue to alienate the fans.

The bottom line is that collective bargaining is just like any other proposed solution to college sports’ ills. There’s no magic bullet to solve the problems, and there’s a lot of devils in the details of the ideas that do exist.

Related stories

• HOUSE SETTLEMENT APPROVED: Long-awaited, the House settlement was finally approved by a federal judge. CLICK HERE.