The idea of a players union, NIL concerns, losses in court — yes, the NCAA has some issues

In light of the National Labor Relations Board’s bombshell nine-page memo Wednesday, which says that college athletes at private schools are school employees, the stakes for the upcoming NCAA Constitutional Convention have just been raised considerably.

The NCAA’s beleaguered business model already was facing a monumental stress test while confronting increasing vulnerabilities in the courts, massive football-driven conference realignment and ramifications from the NIL era, which was the topic of a U.S. House of Representatives subcommittee hearing Thursday. Now comes signaling of an existential threat to the association’s amateur model.

The memo, written by NLRB general counsel Jennifer Abruzzo, serves only as guidance to regional directors. But it opens the door to further attempts for athletes at private universities to unionize and negotiate working conditions, including compensation. And ultimately it opens the door to establishing college sports as a professional enterprise.

Jason Stahl, a former University of Minnesota professor who is the founder and executive director of the College Football Players Association, told On3 that the memo marked a “significant and welcomed” development, though a long process looms that requires patience.

The landscape that could emerge, specifically in college football, is that “you’re going to have a more professionalized status, particularly among the top programs,” Stahl said. “This is why you see the scrambling to be in the top 30, to be in the top 60. I could see something five years from now where there is a collective bargaining agreement in place with the top 30 programs. I don’t think that means dire consequences for the rest of college sports.”

It could mean the eventual death of the decades-old NCAA term “student-athlete,” which the association uses symbolically to hammer home the point that college athletes should not be deemed school employees. But the tangible effects of establishing athletes at private universities as employees — the NLRB only has jurisdiction over private schools — could be seismic. 

Collective bargaining could prompt negotiations to occur on theoretically all matters, including practice time, medical protocols, recruiting practices and the parameters of the coach-player relationship. The latter already has been morphing in recent years, triggered in part by the transfer portal and increasing scrutiny of coaches’ behavior.

“Healthy workplace boundaries, which right now we do not have,” Stahl said. “We have this whole idea that the coach is a father. No, the coach is not a player’s father. That sort of framework is used in such an exploitative way in so many programs precisely because we are not explicitly establishing this as a workplace, to be regulated as a workplace with a boss and workers. Let’s move toward that. NFL players don’t think of their head coach as their dad.”

There clearly are other implications for schools to contemplate as well. In Thursday’s hearing, Baylor president Linda Livingstone contended that, if athletes in revenue-generating sports commanded a larger slice of the pie, non-revenue sports would be at risk of being eliminated.

Overall, the winds of pending change can be felt on numerous fronts. First, the memo stands in sharp contrast with how the NLRB addressed efforts by Northwestern football players to unionize in 2015. The NLRB decided to punt in that situation, saying that acting otherwise “would not promote stability in labor relations.” 

Second, a Pennsylvania judge recently declined to dismiss a class action lawsuit by athletes who are seeking employment status under the Fair Labor Standards Act. And in May, U.S. Sen. Chris Murphy (D-Conn.) introduced legislation to provide collective bargaining rights for college athletes, with companion legislation introduced in the House.

All of these headwinds in the face of the NCAA only underscore the onus on the NCAA Constitution Committee — the convention will convene no later than November 15 — to produce broad, meaningful change. But early signs are not encouraging. In the committee’s survey of nearly 3,500 campus, conference and coaches association administrators, one of the “non-negotiable” facets of the existing college model most often mentioned was the amateur component. There also are concerns about the lack of representation on the committee from active athletes in revenue-driving sports. 

In talking with On3 recently, one conference commissioner echoed the thoughts of several sources: The NCAA’s specific endgame remains unclear.

“My biggest concern is the unknown,” the commissioner said. “In my experience, people never venture into something this sizable without knowing where they want to land the plane. Nobody’s told us or given us an indication of where they want this plane to land. And so where there’s confusion and lack of communication, then you fill in your own gaps and usually those aren’t good things.

“I’m skeptical that this is just a fishing trip, you know? What is the endgame? I’m very concerned, and I think a lot of us are. I think we all believe in the big tent concept. We all want to be under that big tent, even though we realize there’s going to be different seats at the table and different rules we’re going to follow. But we have great strength as an organization as a whole. Let’s not screw that up.”

Another conference commissioner told On3: “Part of the reason the NCAA is having all these issues is that they don’t manage football. The football conferences are the ones dictating it, so I think there is going to be some type of breakaway. These next few months with the governance overhaul, and (NCAA president) Mark (Emmert) is pushing us a lot faster than what I think is realistic. But he sees the writing on the wall that something has to get done.”

While the NLRB news does raise the stakes, Stahl said, “they are not going to produce any change because there’s not the minds in the room to create the change. The status quo is completely acceptable to that group. I could be wrong; maybe they are going to produce something revolutionary. But I am not holding my breath.”

More than just a game for Cincinnati

If No. 7 Cincinnati (3-0) can clear a sizable hurdle Saturday and beat No. 9 Notre Dame (4-0) in South Bend, the Bearcats can begin to eye a potential undefeated regular season. Given how topsy-turvy this season has been to date, an unblemished record may — may — position the Bearcats to become the first Group of 5 program to make the four-team College Football Playoff.

If that occurs, it will mark a barrier-breaking moment. But it won’t necessarily translate into a significant financial windfall for Cincinnati.

In the CFP revenue distribution formula, each Power 5 conference receives $67 million annually that it then shares with its members. The CFP also gives a total of about $92 million to the Group of 5 conferences, such as Cincinnati’s American Athletic Conference. The $92 million is shared relatively equally among the five leagues. 

A conference receives $6 million for each team selected for a CFP semifinal. How conferences share that among members varies. No additional distribution to conferences will occur for teams that reach the championship game. In addition, a conference receives $4 million for each team that plays in a New Year’s Six bowl.

In 2019, Cincinnati athletics generated $68.9 million in revenue, with some 10 percent of that coming from the conference distributions, the NCAA, media rights and postseason football.

Still, while any distributed revenue from a potential CFP berth may not be a major financial boon for Cincinnati, there certainly are other significant benefits. One is enhancing the perception of the program. That, in turn, impacts recruiting, which impacts a program’s chances of returning to the CFP. Only 11 teams have reached the CFP since its birth in 2014. 

Pac-12 commissioner George Kliavkoff called the current four-team model a “broken system.” He added in a New York Times interview that “just the way it’s set up, it’s designed — and I don’t think it was on purpose or malignant — but it was designed for the rich to get richer. If you got invited to the CFP in one of the first few years, it makes it easier to recruit, which makes it easier to get back to the CFP, which makes it easier to recruit, and it’s a self-fulfilling prophecy.”

If they can run the table, the Bearcats hope they can start that self-fulfilling cycle. 

Quick hits . . .

+ While long overdue, it is heartening that the NCAA’s women’s basketball tournament will start using “March Madness” branding associated with the men’s tournament. Bravo to The Wall Street Journal for shining a light on the issue in March. When asked then why the women’s tournament didn’t use “March Madness,” an NCAA official told the newspaper that “women’s basketball leadership at the time chose to pursue their own brand identity.” That wasn’t true. Executives overseeing women’s basketball had made at least one request to use the “March Madness” brand in recent years, but the request was rebuffed by the NCAA. The NCAA had reserved the “March Madness” brand for the men even though its trademark registrations for the phrase allowed its use for both the men’s and women’s tournaments, the WSJ reported.

+ Mojo, the app designed to help parents who coach youth sports, will work with the Aspen Institute’s Project Play youth sports initiative in a joint effort to elevate the quality of volunteer coaching in youth sports. The partnership is particularly important amid a pandemic that has limited access to youth sports for millions. A coach can download the free Mojo app to access short-form videos customized to age and skill level plus tools to plan practices. Since launching in February, Mojo has been used by more than 100,000 families. In May, Mojo was named Best Sports App in the annual Webby Awards.

+ In the young NIL era, a variety of stakeholders have expressed concern over athletes engaging in any number of potential deals, whether it be with a booster, a gambling operator, an alcohol company, etc. But this was a first: In Thursday’s hearing, Rep. Larry Bucshon (R-Ind.) — who has undergrad and medical degrees from Illinois — was concerned that the “Chinese Communist Party” may use NIL rights to secure a deal with an athlete in an attempt to influence that athlete. No word on whether such a, um, unique deal would be considered an impermissible recruiting inducement.