Why Antitrust, Not Unionization, Is the Answer to Underpayment of Student-athletes

• Publication year: 2022

Why Antitrust, Not Unionization, is the Answer to Underpayment of Student-Athletes

Evan Nelson
evan.s.nelson@emory.edu

WHY ANTITRUST, NOT UNIONIZATION, IS THE ANSWER TO UNDERPAYMENT OF STUDENT-ATHLETES

ABSTRACT

This Comment examines whether student-athletes should be allowed to unionize and collectively bargain for their rights and will present a legal argument against the unionization of student-athletes. The reasoning behind this argument is that student-athletes are not employees, and therefore, are not able to unionize. Even if student-athletes were categorized as employees, they would struggle to collectively bargain for their rights due to various states' laws that prohibit public employees from unionizing. Rather, this Comment argues that the answer to solving college athlete underpayment is through the remedies that can be provided in antitrust law. The reasoning behind this argument is that student-athletes are independent contractors, and revenue-generating college athletics programs are guilty of price-fixing the cost of labor for these student-athletes' services.

TABLE OF CONTENTS

INTRODUCTION.......................................................................................... 145

I. SHOULD STUDENT-ATHLETES ATTEMPT TO UNIONIZE?................... 146

A. How Does Unionization Work?............................................... 146
B. Are Student-Athletes Employees? ............................................ 147
C. Other Issues with Unionization ............................................... 150

II. POTENTIAL ANTITRUST REMEDIES.................................................. 152

A. How Does Antitrust Law Work?.............................................. 152
B. Student-Athletes Are Independent Contractors ........................ 154
C. College Athletic Departments Are Price-Fixing the Labor of Student-Athletes...................................................................... 155
D. Antitrust Success in the Past ................................................... 155

1. NCAA v. Board of Regents of the University of Oklahoma ......................................................................... 156
2. O'Bannon v. NCAA.......................................................... 159
3. NCAA v. Alston ............................................................... 162

CONCLUSION............................................................................................. 173

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INTRODUCTION

Student-Athletes are talented, hardworking individuals who have dedicated their young lives to excelling in specific sports. As amici describe, Student-Athletes work an average of 35-40 hours per week on athletic duties during their months-long athletic seasons, and most work similar hours during the off-season to stay competitive. At the same time, most of them do their best to succeed academically, managing to devote on average another 40 hours per week to classes and study. Nevertheless, their coaches and others in the Division 1 ecosystem make sure that Student-Athletes put athletics first, which makes it difficult for them to compete for academic success with students more focused on academics. They are often forced to miss class, to neglect their studies, and to forego courses whose schedules conflict with the sports in which they participate. In addition to lessening their chances at academic success because of the time they must devote to their sports obligations, Student-Athletes are often prevented from obtaining internships or part-time paying jobs, and, as a result, often lack both income and marketable work experience. Meanwhile, the grueling hours and physical demands of college sports carry significant health risks, such as sleep deprivation, stress, broken bones, and even potential brain damage. Despite their best efforts, however, fewer than 5% of Student-Athletes will ever play at a professional level, and most of those lucky few will stay in the pros only a few short years. In short, the college years are likely the only years when young Student-Athletes have any realistic chance of earning a significant amount of money or achieving fame as a result of their athletic skills.¹

Judge Milan Smith's concurring opinion in the United States Court of Appeals for the Ninth Circuit's decision in Alston v. NCAA, whose majority opinion was later affirmed by the Supreme Court in the 2020 term, provides a cogent depiction of the plight of many collegiate student-athletes. This troubling reality has caused some people to call for student-athletes to be allowed to unionize and collectively bargain for their rights.²

This Comment examines whether student-athletes should be allowed to unionize and collectively bargain for their rights and will present a legal argument against the unionization of student-athletes. Part I explains why

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student-athletes should not attempt to unionize. However, not all hope is lost for student-athletes. In Part II, this Comment explains why antitrust law could be the cure to underpayment of student-athletes.

I. SHOULD STUDENT-ATHLETES ATTEMPT TO UNIONIZE?

To properly address whether student-athletes should attempt to unionize, this Comment will first explain how unionization works. Next, the question whether student-athletes are employees will be tackled. Then, some potential issues that could arise in the context of student-athlete unionization will be addressed.

A. How Does Unionization Work?

A union is "[a]n organization formed to negotiate with employers, on behalf of workers collectively, about job-related issues such as salary, benefits, hours, and working conditions."³ The right to form a union in the United States is governed by the National Labor Relations Act ("NLRA").⁴ Section 7 of the NLRA provides three basic rights for workers.⁵ The first basic right is the right to form, join, and assist labor organizations.⁶ The second is the right to collectively bargain through representatives chosen by the workers.⁷ The third is the right for workers to engage in "concerted activities" in order to advance and protect their interests.⁸ Some examples of concerted activities include picketing and striking.⁹ Section 8(a) of the NLRA prohibits employer interference with these Section 7 NLRA rights.¹⁰ If an employer does impermissibly interfere with workers' Section 7 NLRA rights, then an employer can be subject to penalties imposed by either the National Labor Relations Board ("NLRB") or the federal courts.¹¹

Unionization is important because analysis shows that unionization helps workers.¹² Unionization helps workers through "higher wages; more and better

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benefits; more effective utilization of social insurance programs; and more effective enforcement of legislated labor protections such as safety, health, and overtime regulations."¹³ Accordingly, since student-athletes do not receive any of these advantages, it is easy to recognize why student-athletes would be attracted to the idea of unionization.

B. Are Student-Athletes Employees?

In order to determine whether student-athletes can unionize, one must first determine whether student-athletes are employees. This is because the NLRA only protects "employees at private-sector workplaces."¹⁴ "Excluded from coverage under the [NLRA] are public-sector employees . . . , agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors . . ."¹⁵

Jennifer A. Abruzzo, General Counsel for the NLRB appointed by President Biden,¹⁶ asserted in a September 2021 memorandum that student-athletes (specifically, "scholarship football players at Division I FBS private colleges and universities, and other similarly situated Players at Academic Institutions") are employees.¹⁷ This idea stems from Abruzzo's belief that student-athletes fulfill the common-law employee test.¹⁸ An employee is "[s]omeone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance."¹⁹ The employer's right to control the details of work performance is crucial to the determination whether a hired party is an

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employee.²⁰ Other factors (the "Reid factors") relevant to the inquiry whether a worker is an employee are: (1) "the skill required," (2) "the source of the instrumentalities and tools," (3) "the location of the work," (4) "the duration of the relationship between the parties," (5) "whether the hiring party has the right to assign additional projects to the hired party," (6) "the extent of the hired party's discretion over when and how long to work," (7) "the method of payment," (8) "the hired party's role in hiring and paying assistants," (9) "whether the work is part of the regular business of the hiring party," (10) "whether the hiring party is in business," (11) "the provision of employee benefits," and (12) "the tax treatment of the hired party."²¹ In support of Abruzzo's assertion that student-athletes are employees, she presents evidence that student-athletes perform services for their respective universities and the National Collegiate Athletic Association ("NCAA"), that student-athletes receive significant compensation, and that student-athletes are subject to substantial control by the NCAA and their respective universities.²²

While Abruzzo's arguments are compelling, they stand in contrast to the vast majority of case law.²³ Berger v. NCAA is one such case that is illustrative of the state of the law.²⁴ In Berger, former women's track and field student-athletes at the University of Pennsylvania sued the University of Pennsylvania, the NCAA, and more than 120 other NCAA Division I universities and colleges alleging that student-athletes are employees who are entitled to a minimum wage under the Fair Labor Standards Act ("FLSA").²⁵ The United States Court of Appeals...