College Athlete Employment Push Puts Pro-Union Democrats in Bind

The issue of whether college athletes should be considered employees is dividing congressional Democrats, who are struggling to find a path forward as Republicans and the NCAA present a united front against the classification.

Even in the Democratic-controlled Senate, lawmakers are trying to balance their support for unions with concerns over the fallout of designating college athletes as employees under various federal labor and employment laws.

And that divide is prompting some members of Congress to look for a compromise.

“What I’m considering is the possibility that athletes could choose representatives to bargain for them without becoming employees,” Sen. Richard Blumenthal (D-Conn.) said in an interview. “It could be a union representative. They could unionize but without being employees.”

The conundrum that Democratic lawmakers face is part of the larger national debate over how to classify workers.

Rep. Kevin Kiley (R-Calif.), for instance, said in a recent hearing that he’s working on legislation to allow companies that rely on independent contractors—such as Uber Technologies Inc. and Lyft Inc.—to provide benefits without the risk of that being used as a factor spurring courts to classify the workers as employees.

What makes college athletes’ worker status thorny for normally pro-labor Democrats is that their constituents are themselves split on the issue.

“I’m hearing from coaches and athletic departments; they think it’s a terrible idea,” Blumenthal said. “A college president regarded it as an anathema.” Students have also told him that they oppose being considered employees, he said.

“There are a lot of potential unintended consequences,” said Blumenthal, whose state is home to the University of Connecticut, the current NCAA men’s basketball champion.

Congressional intervention is increasingly inevitable as administrative agencies are inching closer to a legal ruling on employee classification for college athletes, labor law observers said.

The issue has come to a head after Dartmouth College men’s basketball team’s vote to unionize last month and a National Labor Relations Board official ruled that the students were employees under federal labor law who had the right to form and join a union.

A Fair Labor Standards Act case currently before the US Court of Appeals for the Third Circuit that accuses the NCAA of illegally denying athletes minimum wage could provide that flash point.

Both the Third Circuit and the NLRB appear poised to grant employment status for student athletes in multiple areas of US labor law, which would have significant consequences for colleges, said Roberto Corrada, labor law professor at the University of Denver.

“If the Third Circuit finds that these students are employees under FLSA, then I think Congress is going to have to do something,” Corrada said. “If all of these students are covered under FLSA, that will be a massive financial hit for these colleges.”

Divergent Views

Progressives like Chris Murphy (D-Conn.) and Bernie Sanders (I-Vt.) in the Senate and New York Democrats Jamaal Bowman and Alexandria Ocasio-Cortez in the House have long defended union rights for college athletes. During the March hearing, Democrats on the House Committee on Education and the Workforce defended student athletes’ labor rights.

“They absolutely should have the right to unionize,” Bowman said in an interview, noting that players should have the same benefits as employees. “They should be protected from abuse, they should be compensated for their time, and they should be paid commensurate with what they produce in their particular sport.”

On the other hand, Sen. Joe Manchin (D-W.Va.) has been an outspoken opponent of classifying college athletes as employees, and has co-sponsored a bill with former-coach-turned-senator Tommy Tuberville (R-Ala.) that would set a national standard for profiting from name, image, and likeness—but stops short of employee status.

Sen. Cory Booker (D-N.J.)—who has a draft bill with Blumenthal and Sen. Jerry Moran (R-Kan.) on NIL and health protections for college athletes—said he’s more focused on those issues rather than employment status.

“I remain silent on the employment status, more trying to forge a bipartisan pathway to get something significant done,” Booker said in an interview. He said classifying players as employees isn’t more complicated legally, but “it’s definitely more controversial.”

Other Democrats haven’t yet made up their minds.

“Whether they’re employees or not, I think is what’s got to be decided so I do not have a position on that,” Sen. John Hickenlooper (D-Colo.) said in an interview.

“There are shades on the Democratic side; I don’t think it’s completely unanimous that all Democrats are for employment status,” said Tom McMillen, a former congressman and NBA player who currently heads the LEAD1 Association, a trade group that represents NCAA Division I Football Bowl Subdivision athletic directors in 41 states.

Despite proposals to explicitly ban student athletes from being considered employees, McMillen said Democrats’ reluctance to exclude them from all labor and employment rights means such legislation along those lines is unlikely to pass.

NCAA President “Charlie Baker should be on Mount Rushmore if they can pass non-employment status in the Congress,” McMillen said. “But I don’t think that’s going to happen, I think it’s more likely that they’re going to have to come up with a compromise,” he said.

Hybrid Approach

The easiest path forward for the hybrid model advocated by Blumenthal would be to classify the players as employees under the National Labor Relations Act but not the Fair Labor Standards Act, said Anne Marie Lofaso, a labor law professor at West Virginia University and former NLRB attorney.

The NLRA regulates unionization and collective bargaining, while the FLSA governs rights such as minimum wage and overtime.

But amending the NLRA is untenable because of the politically fraught nature of federal labor laws, Lofaso said.

Still, the former Division I diver said she believes such a hybrid approach fails athletes.

“If you don’t want them to get minimum wage, overtime, and workers compensation, then fine. But at least be open about it,” Lofaso said of Blumenthal’s approach. “This middle ground is still just hurting the players. It’s not a middle ground. It’s a concession to big business.”

Lofaso said she believes, like many labor law observers and scholars, that the players should be classified as employees and form conference-wide bargaining units for unionization.

Tim Buckley, NCAA senior vice president for external affairs, said in an emailed statement that the association is working to “deliver more benefits to student-athletes” including better health-care benefits, scholarship guarantees, and support for its new NIL policies.

“But the Association cannot address all the challenges facing college sports alone,” Buckley said. “Student-athlete leaders from all three divisions and the NCAA support working with Congress to preserve opportunities for student-athletes in all sports and all divisions to continue to participate in sports without being classified as employees.”

A proposal by NCAA’s president Baker could provide a path to compensation for some of the players without the employee label.

Under that proposal, Division I schools would voluntarily invest at least $30,000 per athlete each year for at least half of their athletes into an educational fund. The proposed policy doesn’t dictate how the schools distribute those funds.

Compromise Needed

McMillen expects some kind of congressional action on student athletes within the next two years. What that legislation looks like ultimately turns on the results of this year’s elections, he said.

A Republican-controlled House, Senate, and White House would be more favorable to the NCAA and athletic departments, while a Democratic “trifecta” could be more beneficial to student athlete labor and employment rights, McMillen said.

But with the Senate filibuster still in existence, any approach will have to be bipartisan, he said.

“Remember, you need 60 votes, right?” McMillen said. “You’re still back to a compromise.”

During a recent House hearing on the issue, Republicans called player unionization an “existential threat” to college athletics.

But Sen. Ted Cruz (R-Texas), who has been a leading voice opposing employee classification, acknowledged in an interview that some compromise will have to be forged to pass any legislation.

“If student athletes are treated under federal laws as employees, it would have devastating impacts on college athletics,” said Cruz, who added that he has been negotiating with Booker on NIL and employment status. “In order for something to pass, we’re going to have to have bipartisan agreement—we don’t right now.”