It has been widely reported that the NCAA has been in communications with the NFL and NFLPA relating to potential penalties for student-athletes who accepted benefits from an athlete-agent during their enrollment at an NCAA institution. Although the verdict is still out on whether the NFL will adopt such penalties, athlete-agents and players are not so sure the proposed penalties are a step in the right direction. In fact, the NFLPA stepped out late last week and indicated the players would be opposed to such penalties. There are many questions that still remain, but a fundamental question is whether such a term is a mandatory subject of collective bargaining.
NFL players (including players not yet in the NFL according to Clarrett v. NFL) are represented by their negotiating agent, the NFLPA, in negotiations with the NFL during collective bargaining. If a term is a mandatory subject of bargaining (i.e., terms that relate to wages, hours, and terms and conditions of employment), then the NFL would have to bargain with the NFLPA over this issue. In accordance with Brown v. Pro Football, Inc. and related cases, the NFL cannot unilaterally implement terms of bargaining short of specific circumstances that do not appear to exist here. It is noteworthy that mandatory subjects of bargaining cannot be viewed in isolation and will be analyzed for their practical effect rather than a rigid standard. As such, the NFLPA will likely argue that imposition of such penalties pertain to salaries and terms and conditions of employment and, therefore, such terms must be negotiated prior to implementation. Of course, the NFL and NFLPA are currently involved in bargaining relating to the upcoming expiration of the collective bargaining agreement. This proposed legislation will likely be another hot spot during negotiations.