Failing to include athletes in negotiating is a 'can kick down the road' for NCAA

With a settlement in the blockbuster House v. NCAA case in sight within the next week, the question of when, if at all, schools and conferences will give athletes a seat at the negotiating table grows ever louder.

The settlement in the antitrust case – which could come anytime before the plaintiffs’ May 23 hard deadline – will mark the first momentous development in a two-step process to radically reshape college sports’ financial model, ushering in a true revenue-sharing model.

But that’s only step one.

Legal experts and athlete advocates tell On3 that the only sustainable model – and one that protects the NCAA from further litigation absent Congressional intervention – is one that opens the door to athletes collectively bargaining their compensation and benefits.

“The only sustainable future for college athletics is a future where the new deal is done between the athletes and the schools and conferences they play for,” said Jim Cavale of Athletes.org, one of the handful of players’ associations positioning themselves to unify athletes and represent their interests as college sports’ new financial model takes hold.

Will House v. NCAA settlement give athletes a voice?

Cavale this morning will release a bonus episode of his podcast, “Now It’s Legal with Jim Cavale,” in which he provides a nearly 10-minute long statement aimed toward athletes, their families, fans and administrators about the magnitude of this moment in college athletics.

The House v. NCAA settlement, if agreed to, entails giving schools the ability to share as much as $22 million annually with athletes. However, the agreement is not expected to include a plan to give athletes a say in determining compensation or benefits, now or in the future. 

Absent an antitrust exemption granted by Congress, failure to include athletes at the negotiating table, legal experts say, will continue to leave the NCAA vulnerable to legal challenges related to capping athlete compensation. 

Once a landscape-shifting settlement is initiated, Cavale said, there will be an opportunity for schools to involve athletes in the negotiating conversation, affording them a voice regarding compensation and benefits. 

“If the leaders in college athletics don’t involve the athletes in the setting of those terms, it’s a can kick down the road,” said Cavale, whose association now includes more than 3,000 athletes. “We will have more lawsuits, and we’ll be right back here. However, if they do involve the athletes, there’s a chance to have a deal that’s agreed to by the athletes that can be protected so we don’t live in the courts.”

Why college leaders have ‘choice to make’

There are several ways college sports could open the door to athlete collective bargaining.

The National Labor Relations Board is currently weighing the athlete employment question related to multiple cases: The Dartmouth men’s basketball team and USC‘s football and men’s and women’s basketball players. An employment model would allow athletes to create unions and usher in collective bargaining.

While it would provide legal protection for the NCAA, the association and most in the administrative class have been strident in their opposition to such a model.

Then there is what has come to be widely referred to as the Jack Swarbrick hybrid concept, a reference to the retired Notre Dame athletic director who pitched the idea in the fall. It entails a special status exemption from Congress that gives athletes collective bargaining power without deeming them employees of their schools, conferences or the NCAA.

It is unclear if the NCAA has any level of support for such a concept.

What the House v. NCAA settlement could introduce is an annual process in which future college athletes either opt-in or opt-out of the agreed-upon revenue-sharing model and its terms. Legal experts say that alone would not provide the NCAA with the legal protection it seeks. 

In addition to compensation, there is a slew of other elements in the college athlete experience that could be subject to negotiation: transfer rules, practice time per week, length of the season, how many games they play, medical coverage, mental health resources and much more. 

Once the settlement is agreed upon, Cavale envisions that college sports will be on the clock for perhaps the following nine months, a golden opportunity to begin to involve athletes in establishing the terms of their collegiate experience. 

“If you’re a college athletics leader,” Cavale said, “you have a choice to make: You can do nothing. Let this play out. Let the others figure it out. That’s what college athletics leaders have done for a long time, which is how we got here. 

“Or you can get in front of this. You can allow your athletes to be educated on this, you can empower them to be educated on this. And you can allow your athletes to sit at the table and have a perspective that they share and negotiate with you on for each of these categories, from revenue sharing down through the others. You can involve them in the terms you set at your institution or through your conference. That’s the choice.”