As college football players across the U.S. have suddenly banded together in the #WeWantToPlay movement, those calling for widespread unionization of the group must understand that the law governing unionization in the U.S. makes that unlikely. 1/
The National Labor Relations Act was passed in 1935 to provide workers returning to employment after the Great Depression protections. It provides U.S. employees of private employers the right to unionize. Key words: 1. Private employer and 2. employees. 2/
In 2014, Northwestern football players on scholarship filed a petition to unionize. The National Labor Relations Board used the Right to Control test to deem them employees who could vote to unionize. It is notable that this part of the NLRB’s ruling was never overturned. 3/
However, the NLRB ruled that despite Northwestern football players on scholarship being employees, they couldn’t vote to unionize because of the NCAA’s focus on competitive balance. And herein lies the issue #WeAreUnited athletes face in forming a union under the NLRA. 4/
The issue with #WeAreUnited athletes forming a union, is there are 128 schools in NCAA Division I FBS, but not all are private schools. The NLRA grants the right to unionize employees of private employers; it wouldn’t apply to athletes at state schools. 5/
Thus, what will likely emerge from this is not a union, but a non-union organization likely organized as a nonprofit. As NCAA athletes begin securing their name, image and likeness rights and group licensing becomes a priority for them, the need for this will grow. 6/
The question is, who will lead this non-union organizing body? An interesting entity to watch: the NFLPA. I wrote on this topic related to NCAA athlete name, image and likeness for @TheAthleticBIZ: theathletic.com/1334210/2019/1… 7/
Ok, thanks for listening. I never wake up in the middle of the night, but here we are. Glad I could drop some sports law knowledge and here’s to hoping when I wake up for my 5 a.m. workout in 50-minutes that the college football world is still spinning!
