With major college athletics conferences disagreeing over whether to play college football this fall amid the continuing spread of COVID-19, college athletes have begun to flex their collective muscle and make sure their voice is heard. But that could have broader implications for college sports amid debate about the rights and benefits of college athletes in the current system. Here, my Law360 story takes a closer look...
Law360 (August 11, 2020, 9:43 PM EDT) -- As the major NCAA conferences consider canceling or postponing the football season due to the spread of COVID-19, players across the country have banded together to push for universal health protections as part of an unprecedented collective uprising that could ultimately shift the balance of power toward college athletes.
On Sunday, several college football players began tweeting out graphics with messages expressing a desire to play the season this year with "universal mandated health and safety procedures and protocols to protect college-athletes against COVID-19." The players also said they hoped to "ultimately create a college football players association."
The movement combines two separate player movements using the hashtags #WeAreUnited and #WeWantToPlay, bringing together players from all five of the major conferences: the Atlantic Coast Conference, Big Ten Conference, Big 12 Conference, Pacific-12 Conference and Southeastern Conference.
Despite announcing football schedules earlier this month, those conferences are reportedly now discussing whether to cancel or postpone their seasons due to the continued spread of COVID-19 across the country, including across the Sun Belt states where college football is especially popular. The Big Ten and Pac-12 on Tuesday became the first major conferences to announce postponements.
But while the season remains in doubt, the united effort by the players could have longer-term consequences for the NCAA amid broader questions about college athletes' rights, including payment for the use of their names, images and likenesses.
"It is not just health, safety and welfare with regard to the coronavirus," said sports attorney Darren Heitner of Heitner Legal PLLC. "It is about doing more for minority players. It is about trying to have national reform with regard to name, image and likeness. These are issues that the athletes care about and so far have been silenced [for] it seems forever. All of a sudden it becomes a much more vocalized issue."
The COVID-19 pandemic poses risks for the fall college sports seasons as schools across the country are moving to online classes and limiting the number of students on campus. The virus has killed more than 160,000 Americans and is spreading faster in many parts of the country than it was months ago when authorities began taking steps to curtail it.
Unlike players in the NFL, which is moving forward with its season next month with stadiums at reduced capacity, college athletes are deemed amateurs by NCAA rules, changing the risk calculus. They are not paid beyond scholarship and aid that covers the costs of attendance, they are not eligible for workers' compensation if they are unable to play, and their interests are not represented by a players union like the NFL Players Association.
Part of the push from at least some of the players has been for forming an association to represent the interests of college football players and all college athletes in general. To the extent that they seek to form a labor union, experts say that will be an uphill battle.
First, it is not clear that college athletes are employees under state and federal labor laws. Athletes would likely have to unionize on a college-by-college basis by arguing that the employer is their school. Further, public schools would not fall under the National Labor Relations Act, meaning unionization efforts would be determined by state laws and could have diverging results.
In 2014, football players at Northwestern University, a private school in the Big Ten, sought to unionize. A National Labor Relations Board regional director found that scholarship players for the school's football team were employees under the NLRA and allowed them to form a union.
However, the full NLRB later put an end to that effort. While the board punted on the question of whether scholarship football players were employees, it said allowing the players to unionize "would not serve to promote stability in labor relations."
Miller Canfield Paddock & Stone PLC labor and employment attorney Robert Zielinski said the Northwestern case may have foreclosed the possibility that athletes at private universities can unionize as employees of their schools, but unionization by players at public universities is still at least theoretically a possibility under individual state laws.
Regardless, Zielinski said there is nothing standing in the way of players forming some other sort of association or organization to advocate for their interests, something that now only exists in limited form. There are currently so-called student-athlete advisory committees organized by the NCAA and conferences to represent college athletes' concerns, but the current movement is athlete-driven and seemingly more independent.
Still, labor unions provide other advantages: They have more leverage and could bind all the members to follow whatever agreements are reached with schools, conferences or the NCAA.
"The administration could sit down with a group of players who say they represent the players and work out a deal, so to speak, or parameters for how things will go," Zielinski said. "But that would not necessarily be binding on all the players."
A mere student group or association could still speak for the players, but may only be able to do so much. Leverage would be determined in part by how united the players are — for example, if they agree they would not play if demands are not met.
Perhaps ironically for the NCAA and conferences, which have fought for years to ensure that college athletes remain amateurs, the existence of unions might make it easier for conferences and schools to find a workable solution.
The major professional leagues have minimized their liability by making deals with their players' unions that require players to play under certain conditions and follow certain rules to prevent the spread of the virus.
Meanwhile, after several members of Congress criticized Ohio State University and Southern Methodist University for making athletes sign liability waivers to return to campus for summer practices, the NCAA Board of Governors told member schools earlier this month that they "may not require student-athletes to waive their legal rights regarding COVID-19 as a condition of athletics participation."
"From the universities' standpoint, from the conferences' standpoint, though they may not say it overtly and they certainly will not say it publicly, one of if not the biggest concern is the creation of liability if in fact they allow the athletes to play without waivers in hand," Heitner said.
By making health and safety a key issue, the players put the colleges in a tough position.
ESPN reported this week that one of the key concerns for many college presidents is the potential long-term heart complications from contracting the virus, complications that are still not yet fully understood.
But regardless of whether it is through a labor union or some form of trade association, experts say it is notable that athletes are coming together to voice their concerns. It shows they are realizing that they do have some power to lobby for greater rights and gain the sympathy of fans in the process.
A post by Clemson University star quarterback Trevor Lawrence promoting the #WeWantToPlay movement has been retweeted more than 15,000 times and has nearly 63,000 likes. Even President Donald Trump has seemingly thrown his support behind the effort. "The student-athletes have been working too hard for their season to be cancelled. #WeWantToPlay," Trump tweeted, as the question of whether and how to play the college football season has emerged as a political wedge issue ahead of the presidential election.
"You have always had advocates on behalf of the athletes. You have always had naysayers. But it is very rare that you have had so many athletes at the same time, basically pushing out an agenda," Heitner said. "Despite the fact that there is not really one unifying trade association, it is quite amazing how this has spread like wildfire."
--Editing by Aaron Pelc.