For the first time, a group of student-athletes at Northwestern University have sought to unionize and have filed a petition with the Chicago, Illinois office of the National Labor Relations Board (“NLRB”). Under federal labor law, the NLRB will conduct a vote of potential members to determine whether there is the requisite support (i.e., 30%) to have the National College Players Association serve as the union overseeing their interests. The NCAA has argued that student-athletes are not employees, which is supported by case law (Waldrep v. Texas Employers Insurance Association). However, that decision does not forbid the NLRB from finding that student-athletes are employees under the National Labor Relations Act.
Unionizing presents both benefits and challenges. If the NLRB authorizes unionization, student-athletes would be presented with the opportunity to negotiate with the NCAA on a number of matters including the many provisions of the NCAA Manual. Under labor law, an employer is required to negotiate in “good faith” over mandatory subjects of bargaining (i.e., wages, hours, and terms and conditions of employment). Accordingly, the student-athletes would be able to address entrance standards, practice and playing seasons, transfer restrictions, etc. On the other hand, the NCAA would be afforded protection from antitrust claims. The nonstatutory labor exemption favors bargaining and agreements over antitrust claims. Thus, matters that have been bargained for will generally not be subject to antitrust claims unless the union is decertified or the union disclaims interest.