National press made significant headlines last week about negotiation negotiations between the NCAA, the Power Five conferences, and the more than 14,500 players represented by House v. NCAA. A multibillion-dollar deal, according to reports, would provide compensation for players who lost telecast, video game, and NIL opportunities as well as a revenue-sharing model that would allow athletes at significant programs to continue to receive a cut.
A lawsuit in House, which is scheduled to go to trial next January, would fire a new world order for college athletics.
There’s a no- so- little problem: Any restrictions on how much revenue college athletes receive going forward would be subject to competitive challenge.
In that the NCAA, events, and institutions are competing companies joining forces to place limits on performer pay, Sportico explained, those restrictions are analogous to price-fixing. Unless borne through social bargaining—more on that below—caps and restrictions are fair game for complaints. There’s no shortage of plaintiff- side competitive litigators who was, and virtually certainly did, challenge them. Maybe the limits would withstand litigation, maybe they would n’t. Finding out may take ages.

But if revenue caps and other labor restraints —such as on transferring, NIL collectives or athlete discipline—are bargained with a college players ‘ union, antitrust concerns will greatly diminish. Income, hours, and other working problems are typically exempt from antitrust investigation when agreed upon by management and work under the non-statutory workers exemption.
That raises another issue. It could be decades before there’s a large- level college players ‘ union. Under work law, unions may be composed of workers.
While an Board regional director just recognized Dartmouth female’s baseball players as employees who next unionized, their university is appealing. USC basketball and men’s and women’s basketball players may become recognized as people, also, but that would also be appealed. Some state ‘ labor laws would make it difficult, if not impossible, for public school athletes to become unionized. Meanwhile, there are non- union players ‘ associations, including the College Football Players Association ( CFBPA ) and Athletes. org, but they ca n’t bargain since they are not unions.
In short, the timeline for a House settlement does n’t align well with the broad formation of a players ‘ union.
Jason Stahl, the executive director of the CFBPA, is currently pushing for national legislation that would give college athletes the right to bargain collectively without having to work for themselves. Under this plan, college athletes may secure a social speech, including through non- union players ‘ associations. However, the NCAA, meetings and colleges would avert classifying the players as employees but, by negotiations with the players, also reduce the likelihood of competitive challenges.

Stahl, who details this thought in a magazine, believes a “hybrid solution” that” stops short of full employee classification” but nevertheless supplies athletes with the right to bargain would form a rational middle ground.
A former faculty member at the University of Minnesota, Stahl warns the college- athlete- as- employee debate will face” trench warfare” for “years to come” at federal agencies and the courts. The “political whims” of the final decision may determine outcomes. He claims that CFBPA has spoken with football players from various national programs. ” There does not seem to be an appetite for these types of legal battles over formal employment, unionization and collective bargaining”, Stahl noted in the newsletter.
Stahl thinks that college athletes ‘ non-employee bargaining is appropriate with contemporary employment trends. He sees the gig economy, with Uber drivers and similar arrangements, as reflecting Americans choosing “new types of work lives”. These lives, Stahl believes, preserve an independent status while incorporating opportunities to” collectively” seek the betterment of working conditions.
Additionally, Stahl mentions that alternative approaches are being supported by the academic and athletic sectors. Former Notre Dame athletic director Jack Swarbrick proposed collective bargaining for college athletes last year without having them work for themselves. A dozen years ago, Michael LeRoy, a professor of labor law at the University of Illinois, advocated for “unique and limited” collective bargaining for college athletes.
Would Congress support the ideas that Stahl suggests? In a phone interview, Stahl acknowledged that Congress has held attention-grabbing hearings on the rights of college athletes in recent years but that it has n’t taken any legislation out of committee. He also made it clear that 2024 will be a campaign year for members who wo n’t be campaigning, and that the nation is mired in a contentious period of student protests, a divisive presidential contest, and numerous international wars that have been fought against American interests.
That daunting alignment does n’t deter him.
” Trying to do good in a chaotic world is the best response; let’s not complicate it.” Stahl said. He added that both members of Congress have a track record of working together on players ‘ rights because they have pushed for NIL-related legislation. Stahl argued that the employment debate is more partisan and that partisanship could stall reform, which is why he thinks the CFBPA proposal is wise.
One possible criticism of Stahl’s theory is that if college athletes are employees, they should n’t be treated the same way as their classmates who are employees, not as a presumption that they belong to a lower class. Recent efforts have been made to recognize and unionize employees at college campuses across America, from graduate students to student dining hall workers. One might argue college athletes, who are the labor behind the multibillion- dollar college sports industry, ought to be employees, too.
In response, Stahl emphasized that through collective bargaining, college athletes would gain employment- like protections, including direct input on how they are treated by schools.
Other issues were raised by two CFBPA vice presidents. College athletes are more diligent athletes, including by training and preparing, whereas college athletes who played lacrosse at Duke are frequently compensated on an hourly basis and are not expected to perform work outside those hours. Similar to Justin Falcinelli’s assertion that college athletes are expected to devote their time to their chosen sport in ways unmatched by those of other student workers, Falcinelli also emphasized this.
According to the VPs, different employment arrangements should be expected for college athletes compared to other types of college student workers.