College Athletes Finding a Voice – The Status of Labor and Employment Issues in College Sports

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  • Brian D. Barger, Partner, McGuireWoods LLP (Moderator)
  • Michael R. Phillips, Partner, McGuireWoods LLP
  • DeMaurice Smith, Executive Director, National Football League Players Association (NFLPA)

Webinar Recap

Since the tragic death of George Floyd, the trend of increased student-athlete activism has aligned with the narrative in our country of people seeking more accountability and equality from individuals and entities. Recently, student-athletes have marched and demonstrated, boycott practices and donor events, sought to discipline coaching staff based on race issues, demanded renaming of buildings as well as banning of traditional fight songs that have negative historical racial connotations. Based on general increased demands from student-athletes for a greater voice, this LEAD1 Association (“LEAD1”) virtual forum analyzed the legal, practical, and cultural ramifications of such a movement. The webinar, moderated by Brian Barger, Partner at McGuire Woods, featured DeMaurice Smith, the Executive Director at the National Football League Players Association (NFLPA), and Michael Phillips, Partner at McGuire Woods.

Before the moderated session, Phillips briefly provided the legal backdrop to shape the discussion. In 2015, the National Labor Relations Board (NLRB), which is the independent federal agency that enforces U.S. labor laws, declined to exercise jurisdiction when Northwestern scholarship football players sought to become employees under federal labor law. More recently, in Berger v. NCAA, and Dawson v. NCAA, both Courts held that student-athletes were not employees of the university, conference, or NCAA.

On the issue of whether student-athletes should have their own player’s association or similar trade association, Smith (not surprisingly) believes they “should,” however, pointed to the Missouri student-athlete boycott in 2015 as a potential model for student-athletes moving forward. “A group of athletes (off the field) should have the same ability to have each other’s backs…by directly engaging the power structure at their university,” said Smith. “There could be legal issues if groups of players organize, but if the issue is racism, Missouri found a way to engage their university on solving problems.”

On unionization, Phillips noted that the NLRB Northwestern decision did not necessarily close the door on those efforts as the body merely declined jurisdiction and that the opportunity to unionize remains open given that “precedent is not always binding on the NLRB” and the NLRB is more of a “political body.” Phillips also mentioned that while student-athletes have a right to engage in organized boycotts and other forms of protests without being organized as a labor union, some of the recent demonstrations employed by student-athletes may not have been legal if there were unionization.

Phillips also discussed the effect of social media on student-athlete activism and how various constitutional rights, such as freedom of speech and assembly, affect how athletic departments can respond to forms of activism. According to Phillips, social media has changed the game in terms of student-athletes finding their voice (noting that recent coordinated activities of student-athletes, including student-athletes connecting from different schools, would likely not have been possible but for social media). In terms of what rights athletic departments have to respond to student-athlete activism, Courts generally look for content-neutral regulations – that is any restrictions must be narrowly tailored to achieve a significant government interest and the regulation must leave ample opportunities for other forms of communication. Practically, for example, this would mean that an athletic department could bar activism in the middle of an athletic practice, however, could not completely bar such protest in all other activities. Of course, much of this depends on whether an institution is public or private because the Constitution only applies to state action (subject to some exceptions).

In terms of whether athletic department staff members have a right to support student-athlete activism, the right is “limited,” and “not absolute,” said Phillips. Because race is a protected category, subject to strict scrutiny, by the Courts, athletic department staff may also have discrimination and retaliation claims, even if merely in support of another’s rights, like a student-athlete.

On whether college sports is doing enough on student-athlete health and safety, Smith challenged the use of the term “student-athlete,” stating that the term is nomenclature derived from legal precedent that has favored the NCAA. In other words, categorizing players as “student-athletes” already puts them at a disadvantage (at least from an equitable standpoint). In this vein, similar to the collectively bargained rights that NFL players have negotiated, to improve player benefits in college sports, Smith recommends stricter limits on time spent in athletic facilities, stricter rules on informed consent with respect to team doctors and trainers, and ensuring proper health care for athletes with any lingering injuries post eligibility.

Another topic of conversation was the possibility of group licensing applied to college sports, akin to the professional sports models where players share equally in licensing agreements among a group of players. For purposes of this forum, the issue is whether a group licensing system could help mitigate the pressures of unionization, and provide greater overall benefits to college athletes. According to Smith, college sports will see group licensing come into fruition before individual licensing because “there are businesses looking to partner with athletes for joint revenue opportunities.” Smith also argued that because there are already great disparities in college sports (notwithstanding any changes to student-athlete compensation rules), any argument that greater licensing would further divide college sports is a “strawman fallacy.”

While student-athlete activism is not a new issue in college sports, and even with unionization being unlikely, the panel agreed that college sports would benefit from some sort of resolution on the issues discussed. “We have an opportunity to act and think differently as Americans,” said Smith.