Why a College Athlete Union Seems Inevitable – and How it Could Work

March 9, 2022 – Media Mention
Global Sport Matters

Irwin Kishner, co-chair of Herrick's Sports Law Group, spoke to Global Sport Matters about the possibility of college athletes forming a labor union. The article noted, "[t]he National Collegiate Athletic Association’s longtime prohibition of athlete compensation is currently crumbling in courts and statehouses alike, and its concurrent refusal to recognize athletes as employees may be next. If that happens, college athletes would be able to form unions and engage in collective bargaining with their schools, conferences, and even the NCAA." 

In discussing how this change would fundamentally alter the power dynamics, Kishner remarked, "If you deem them employees, that will be a dramatic change in the way universities will have to treat their athletes[.]" 

The article noted that the NCAA classifies amateur athletes as not being paid to play and not being employees of their schools, but both tenets have been the subject of legal losses. The article further examined the effects that a lawsuit of athletes seeking employee status would have. Kishner commented, "I think the real answer is very dependent on the program and the particular school that we're talking about... Some of the major powerhouse universities, their athletes may be getting a lot closer to that employee definition than perhaps smaller programs." He elaborated, "I’m not trying to demean anybody but your DIII swim team, where you’re participating on a collegiate level because it’s fun [or] it’s the only opportunity you have to do that, and you enjoy it: Are you now an employee too, because you’re bringing some honor onto it? So I think that there’s really degrees of what’s closer to an employee versus not."

The article offered several routes college athletes may take in seeking unionization, including forming unions school by school or a larger collective union. It also forewarned of possible difficulties in their efforts, such as busy class schedules and constant turnover as students graduate. Kishner reflected, "I don’t think there’s one answer that fits all," adding, "It’s got to be fact specific. So if you are a big, super, mega-program, you may want to have the power to do whatever you want, because you’re a have versus a have-not, and you’ve got the money. Frankly, if you could spend more than 98% of the other schools, maybe you want to [do that]. I don't think there's one answer that fits that question. I think it just really comes to where you fit in that made-up hierarchy of how wealthy the school is, how prominent the program is, how much your benefactors are [helping], what your endowment is, and how much money you have to sort [of] play in this field."

He highlighted the strong financial impetus for student athletes, citing football and basketball television contracts worth in the hundreds of millions. He said, "There’s a real economic incentive to try to organize... It can and, frankly, in my opinion, will be done."

Kishner explained, "I don’t know if it’s going to get to the point where DIII sailing is going to be – there may be a union for that, too. But as far as the timeline of that, that’s later. And the first place you’re going to see it is where there’s a lot of money to be divided. And that’s when the players’ union is going to say, ‘Wait a second. You don’t have a product unless I’m on the field or I’m on the court. And I want to share part of those revenues with you.’ And it’s not an unfair argument."

Read the full article in Global Sport Matters here.