(Editor’s Note: What follows is the summary of a law review article prepared by Michael H. LeRoy Professor, School of Labor & Employment Relations & College of Law at the University of Illinois at Urbana-Champaign and a Lecturer in Law, University of Chicago Law School)
How will courts shape labor rights in college sports? For decades, judges have fostered changes in how athletes are paid in professional baseball, football, basketball, and hockey. Recently, “labor” has entered the lexicon of NCAA litigation involving antitrust and union organizing. The term “athletic labor,” recently coined by a federal appeals court, signals a turn in favor of students. It will likely advance their drive for pay and other enhancements in exchange for participation in sports. Already, an NLRB regional director’s ruling in Northwestern University has accelerated the NCAA’s efforts to compensate students.
This study forecasts how courts will apply labor law to resolve complaints by students against the NCAA. It draws from 81 state and federal court rulings from 1973 to 2014. Students won all or part of 49% first-round court rulings, but the NCAA won in 71% of second-round cases, and won another 71% of third-round appeals. Venue played a significant role, as students won 75% of first-round decisions in state courts, while the NCAA won 61% of first-round federal decisions. Forty percent of cases involved football, but the rest involved a wide diversity of NCAA sports.
The future will likely bring be more court rulings involving the National Labor Relations Act (NLRA), Norris-LaGuardia Act (NLGA), and Sherman Act (antitrust). After the National Labor Relations Board rules in Northwestern University, a federal appeals court, and possibly Supreme Court, will decide if college football players are employees under the NLRA. The NCAA’s record of winning most cases on appeal suggests that the ultimate outcome will favor the association. Under the Sherman Act, courts will probably find that college football players are in a labor market, but also conclude that NCAA rules have a pro-competitive effect on the business of college football— again, favoring the NCAA. The most vexing problem for the NCAA could be pickets, boycotts, and other concerted activities directed by a players union and their supporters against NCAA sponsors and business partners. Most actions would be sheltered from an injunction under the NLGA— thereby pressuring the NCAA to make significant reforms.
Future courts are unlikely to order the NCAA to abandon its definition of amateur athletics. Without enabling legislation that regulates this private association, courts have no authority to surgically snip the amateur competition clause in NCAA bylaws for football, and leave it intact for non-revenue sports. Even if a district court favors students in an antitrust case involving football, it will be hamstrung in ordering remedies because damages and court supervision would come back to hurt women’s sports that depend on football for financial support.
In sum, while the facts favor classifying college football players as employees, the law supports the NCAA’s amateur athlete model. Thus, while schools profit off the sweat of college football players, a federal appeals court is unlikely to view this commercial reality as legal justification to alter the NCAA’s amateurism model. But the forecast for occasional first-round victories by students— based on empirical findings in this study— means that the NCAA will be pressured to adopt a radically new model of amateurism that mimics the employment relationship.
