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Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we are going to talk about college sports and unionization. Our guest is Nellie Drew. Drew is a law professor and founder of the Center for the Advancement of Sport at the University at Buffalo.
In this episode, we talk about myriad employment law issues the National Collegiate Athletics Association (NCAA) is facing, from the rise of name, image and likeness deals to the unionization of Dartmouth’s men’s basketball team, to arguments about who, exactly, the athletes work for if they are, in fact, employees.
Collectively, all of this portends seismic changes in the NCAA in the employment law space. “It’s clear that this ball has been rolling downhill a long time,” Drew says. “It took a while. It took a long while, and for most of our lifetimes, the NCAA had a stranglehold on what was previously known as a student athlete.”
But that term could become a relic of the past. “The prospects for the NCAA do not look good. There’s at least one case out there that may very well sound the death knell for the NCAA in terms of just massive amounts of liability,” Drew says.
Listen on Apple Podcasts, Spotify and YouTube.
Interview References:
Nellie Drew’s University at Buffalo School of Law profile.
3:01 | Northwestern University and College Athletes Players Association (CAPA). (2014, May 12). National Labor Relations Board.
5:40 | What we know and what we don't about a historic settlement to pay college athletes. NPR, 24 May 2024.
5:50 | O'Bannon v. NCAA, No. 14-16601 (9th Cir. 2015).
5:59 | Trustees of Dartmouth College (NRLB) 01-RC-325633.
15:10 | Education Amendments Act of 1972, 20 U.S.C. §§1681 - 1688 (2018).
15:16 | University of Oregon Hit with Title IX Class Action Over Alleged Discrimination Against Female Student-Athletes. ClassAction.org.
16:23 | University of Southern California; Pac-12 Conference; National Collegiate Athletics Association, (NRLB) 31-CA-290326.
TRANSCRIPT
Matt Crossman, Host: We’re going to talk all about big changes in college sports and the potential of unionization there. But first I want to get background on you.
You’ve had a long career in sports and law. Early in your career, you negotiated contracts with NHL players, and now you teach sports law at the University at Buffalo. You’re also the founder of the Center for the Advancement of Sport at the University at Buffalo. What is that center?
Nellie Drew: The center was founded to encourage and foster collaboration across the disciplines. What I discovered in my teaching career was that we had a number of people across the university who were working in the sports industry in some way, shape or form, but there had been previously no way to connect them, to share their experiences, to give students the opportunity to get exposure to how the various aspects of sports in different disciplines intersect. That’s why we founded the center.
MC: We’re going to dig into a lot of the ways that sports and law intersect. The landscape of college sports has undergone massive upheaval in recent years, and now another seismic change is coming that will send ripples all the way into the employment law world.
The NLRB appears to be on the verge of recognizing members of Dartmouth’s college basketball team as a union. This feels like one of those overnight changes that was really decades in the making. I want you to lay the groundwork as to how we got here, and then we’ll dig deeper into what’s happening at Dartmouth.
ND: The term student athlete was coined as a way to avoid workers compensation liability. So there’s your employment law connection right there.
MC: Right away!
ND: Yes. That was disclosed in a book by the former NCAA president. When you start there, it’s clear that this ball’s been rolling downhill a long time. It took a while. It took a long while, and for most of our lifetimes, the NCAA had a stranglehold on what was previously known as a student athlete.
The Northwestern case was an NLRB case. In the Northwestern situation, you have a university with a respectable football team—not a football powerhouse, as we typically think of them, but certainly a strong program.
The student athletes there had some concerns. In particular, they weren’t being fed very well. You don’t want to starve young men in their 20s who are working very hard. It’s just not good business. That’s when the Northwestern football players decided that they wanted to unionize, and they petitioned the NLRB to form a union.
They were granted the opportunity to hold an election. The NLRB said not because of a specific statutory concern, but more because of the overarching mission of the NLRB, which is to foster industry stability and labor peace that it did not make sense to allow Northwestern, which is one of the only private universities in the Big Ten, to unionize. Allowing them to unionize would disrupt the employment market across the Big Ten because the other institutions are public and therefore subject to different employment and labor relations laws.
What was interesting, at the time, was that Northwestern football is a Division I program, but it’s not a football factory, or at least don’t think of it that way. The information that was disclosed as part of the proceeding was that these football players were working massive numbers of hours, particularly in preseason. They were subject to extremely strict controls in terms of when they could leave campus for breaks. Their schedule was so controlled by the school that it was clearly evident that they were not experiencing the same collegiate trajectory as normal students. I think that really opened a lot of people’s eyes and started to form the basis for what we’re seeing now.
We’ve had the whole name, image and likeness conversation. We have the O’Bannon case, where the young man who at that point was working for a car dealership, walks into the basement of his friend’s house and sees his friend’s son playing a video game with an avatar that looks like him and was wearing his number in the colors of his old school. And he said, wait a minute, I’m not getting a dollar out of this. That was successfully litigated.
Now we’re starting to see this flood of litigation, and the NCAA is losing case after case. I can walk you through others that we’ve got still pending. The prospects for the NCAA do not look good. There’s at least one case out there that may very well sound the death knell for the NCAA in terms of just massive amounts of liability.
The House case, which is the one where they’re talking about $3-4 billion in damages, and that would most likely lead to an NCAA bankruptcy. That’s a class action with respect to student athletes who claim that they were denied the ability to earn name, image and likeness under the previous rules dating back before the O’Bannon case.
MC: So all of that history brings us to what’s happening at Dartmouth. What exactly is happening there?
ND: The Dartmouth men’s basketball team also voted to unionize. In the years after the Northwestern case, I believe it was 2021, Jennifer Abruzzo, the head of the NLRB, came out and said, You know what? I don’t like the term ‘student athlete’ either. I see these collegiate athletes as employees of their institutions.
With that backdrop, the Dartmouth men’s basketball team voted to unionize. Now, Dartmouth is opposing it and they’re claiming that as an Ivy league institution, education is the primary objective of the students.
I attended an Ivy league school. I have kids attending an Ivy league school, and I can tell you that the experience of the student athletes when I was there many years ago is very different from what it is today. And it’s a very much a segregated existence relative to the rest of the student body.
MC: Are we putting the cart before the horse here a little bit? For an athlete to be a member of a union, wouldn’t he or she first have to be considered an employee? I appreciate what Jennifer Abruzzo said—she’s the head of the NLRB—but that doesn’t necessarily have the force of law. Do we have to declare them employees first?
ND: That’s where we’re headed. The findings in the Northwestern case at the first level and in the Dartmouth case are remarkably similar in that they focus upon the amount of control that the schools have over the athletes. For anybody who has any connection to a collegiate athlete, there’s no denying that.
Certainly there are benefits that the student athlete receives from the institution. In some cases, they’re worth quite a bit of money. Even above and beyond that, I think the concern comes from, as I said before, with respect to Northwestern, the very regimented schedule, the amount of restrictions and regulations. When you sign up to be a collegiate athlete, you are making a significant commitment. In many respects, it’s probably more so than any other job you will ever have.
MC: That’s an interesting point. I hadn’t thought about it that way. So there’s all kinds of threads to pull on there. I think you’ve got worker classification, you’ve got the control issue that you mentioned. And both Dartmouth and Northwestern are interesting case studies, because those athletes don’t play for massive revenue generating sports like, say, Alabama Football. The Dartmouth players don’t have scholarships. Do those details matter in terms of how to move forward?
ND: That’s a great point. The Ivy League is all private and the Ivy League institutions are also subject to an antitrust case right now, arising from the fact that they do not receive scholarships that are in relation to their athletic ability. So their scholarships are determined by financial need. The argument runs, absent that restriction, a star basketball player at Dartmouth might get a whole lot more money because they have better skill than their financial need, quote unquote would allocate to them.
MC: Dartmouth, as you mentioned, has refused to recognize the players union. I want to read a quote to you from a statement from Dartmouth about the union vote. They said, “For Ivy League students who are varsity athletes, academics are of primary importance, and athletic pursuit is part of the educational experience. Classifying these students as employees simply because they play basketball is as unprecedented as it is inaccurate.”
My question for you is, what do you think? Is it both unprecedented and inaccurate?
ND: First of all, it’s not unprecedented because we already had the Northwestern case. Second, I think it really depends on the school and the program. And again, even in the Ivies, I don’t believe it’s accurate to say that at least in the traditionally revenue generating sports that those sports are not situations in which an employment context could be found.
But it really depends upon the sport. And in Ivies, you might have more of an argument like that than you would have in some of the other conferences, like you mentioned, certainly the SEC.
When you have schools with athletes flying cross country midweek, missing classes so that they can perform at night and flying back missing another day of classes, what’s the priority here? It’s not academics.
MC: That’s a whole other can of worms, right?
ND: But it’s relevant.
MC: It certainly is because of the level of commitment required of the student. In some sports, you simply can’t make a straight-faced case that the students are there primarily for education. It’s just simply false. Are we going to litigate that at some point?
ND: Great question. I don’t know. And I think the other piece we haven’t mentioned yet, which is important, is the whole transfer rule. The litigation over the transfer rule, brought most notably by the Ohio Attorney General who’s claiming that it’s a restriction on the market. Again, this is one of those rules that the NCAA has long enforced, which has a massive impact upon the capacity of athletes to move between institutions, even after the coach who recruited them is gone. They may or may not have the same experience playing, or they may not have the same playing time. But once you open the door to the transfer portal on an annual basis, at least it will be for this year. The transfer numbers are escalating dramatically, even at places like the University at Buffalo.
And so when you think about all of the challenges that are involved in obtaining a degree, when you’re hopscotching across four institutions in four years, now let’s talk about education as an objective.
MC: I almost think there might be a connection here between some of the arguments we’re having nationwide about noncompete agreements and the transfer rules for college athletes. They’re similar in that a noncompete tells you that you can’t go work somewhere and the transfer rules tell you that you can’t go play somewhere.
How are they similar and how are they different?
ND: I think they’re very similar. And I think that the challenge, of course, is that historically we look at noncompete agreements very carefully. They have to be limited in time and space so that you don’t prevent people from earning a living, and the same thing is true here.
When you tell a student athlete, especially in this world of NIL, that you cannot perform if you transfer, you have to sit out a year, you’re essentially denying them compensation for a year.
MC: I think there is tension here between how things have always been done versus what the law actually says. The NCAA and its member universities have long relied on the cultural belief in the sanctity of amateurism, rather than any strong legal case that college athletes should be amateurs.
I feel like culturally the move away from viewing amateurism as some sort of calling is undergirding a lot of this. In that way, the changing culture is forcing a legal examination, I think. Am I right there?
ND: I think you are, and I think this shows the extent to which we have commercialized even youth sports. And don’t get me going on that because I’ll get on my high horse. But we have commercialized youth sports.
At least where I live, it’s impossible for a young high school student to play on a varsity team unless they have begun playing at a very high level starting when they’re seven or eight years old. That’s ridiculous. It’s not healthy. It’s not good for a whole bunch of different reasons.
Youth sports has become an industry. When you take students who have seen sports as not just a thing to do in their spare time, but as something of an occupation, and then you elevate that at the collegiate level, that’s how you get to where we are now.
Then you throw in the money and you throw in massive amounts of revenue that schools are generating now. Most schools will say they don’t earn a dollar from sports, and some of them may be correct in saying so. Having said that, that’s because they plow the money back into the athletics department.
MC: You told me as we were talking about this earlier, that all of this is changing so fast that textbooks are basically obsolete by the time they get printed. What has been your experience there?
ND: That’s absolutely true. At least a decade ago, I dispensed with using a textbook. Right now we’ve got six or seven cases hanging over the NCAA alone that are relevant just to this talk right now. Just this morning I was going through to make sure that I hadn’t missed something. It’s almost impossible to keep track of all that’s going on. You need a scorecard for the NCAA’s case losses.
MC: I’ve been a sports writer for 25 years. And one of the things that I find interesting is that people try to make the case that you should leave college sports alone because they like it the way that it is. They just don’t care what is happening to the athlete because they want to watch Alabama play on Saturday, and that’s it.
And I feel like for years, that was sort of the NCAA’s argument. And now, as you said, they are starting to lose those cases. So from where we are now, look in your crystal ball, what’s going to happen next?
ND: Great question. I asked that of my peers. I asked that of my friends who are in collegiate athletics. Nobody knows. We’re all trying to figure it out because obviously, as far as institutions go, the ones who are most accurate in projecting are going to be ahead of the game. I think it’s going to be a very different world.
I’m not sure it’s going to be a better world in some respects. I think there will be questions of equity, for women and people of color in particular, especially for women who are at this point have more limited opportunities on the professional side, it’s important that they share in the revenue that’s generated. The Title IX implications of this are massive.
There’s a case out there, Schroeder versus University of Oregon, which essentially is alleging other things, that NIL opportunities are more available to male athletes than female. You could have predicted that. There are going to be so many different aspects of this to negotiate, everything from workers comp for student athletes to overtime pay, to how do you handle the educational component? Do they actually attend class anymore? I don’t have an answer for you. Does the NCAA survive these cases we’re talking about? There’s a really good chance that if one of these goes the wrong way, they’re going to have to declare bankruptcy.
The NCAA, of course, is hoping for a Hail Mary. They’re looking for Congress to pass something. I haven’t seen any evidence Congress is interested or willing to do that.
MC: Another topic that we have to discuss relates to who works for who. Some people claim that the student athletes could actually have up to three employers. They work for the school, they work for the NCAA, and they work for the conference. I believe there’s a case out west examining that. Break that down for me.
ND: That’s the USC case. Interesting case. The argument being made is the conferences and the NCAA are the employers, not the institutions. Because the conferences and NCAA are private, all institutions, even public institutions all subject to the same private collective bargaining model. That would be very interesting.
MC: All right, so I’m a labor lawyer listening to this. I’m thinking, oh my gosh, how many clients am I going to have if I tap into this college athlete market?
Do you see that as an emerging field representing college athletes either through a union or as individuals?
ND: Possibly. More on the union side, I think. The question I have is how difficult it’s going to be to organize them. So in my mind, the collective bargaining model is not a perfect model, even in professional sports, because by definition, the labor force turns over relatively quickly. Think of the NFL, where I believe the current average career is 2.3 years. It’s going to be about the same or less in college.
Once you’ve got the transfer portal open, you have people moving constantly as well. So it’s going to be very challenging. On top of that, these are young people, 18 to 22 year olds. Do you know what it’s like dealing with 18 to 22 year olds on anything?
And then you try to get them to come to some sort of unity of agreement on terms and conditions of employment. Collective bargaining is going to be a nightmare. Are there opportunities there? Sure. Am I signing up for it? No.
MC: Now I want to pivot and ask you professional development questions. After some time on the sports management side, you moved into academia. Why did you do that?
ND: I was working for the Buffalo Sabres, an NHL team, at the time. We were building what is now KeyBank Center. And after we had our third child, our second child fell very ill. And so I did not have the capacity to work on a deal of that magnitude and take care of a very ill child and fly to all the doctor appointments literally across the country that we had to go to. It was not going to work.
So I segued into academia, which turned out to be a really good fit. As much as I loved working for the team and for the league, the nice thing about this is the opportunity for conversations like this. And to take the big perspective instead of worrying about the issue on my desk.
The best part about it is feeling like I can have some sort of impact. I’m the mom of seven, and I have grandchildren now, and I feel like I’ve got the opportunity here to move the needle a bit, to make youth sports better in particular for kids, and for everybody to have a better and more enjoyable sports experience.
MC: While you were with the Sabres, you negotiated contracts for some very big names, guys who have wound up in the Hall of Fame. What did you learn doing that? And what does a typical sports fan not know about that negotiating process that you wish you could tell them?
ND: The players are people, too. They have unique perspectives and needs, mostly with respect to their families and their concerns for their families. I think sometimes, especially in this world where social media leaves very little privacy, it’s important to respect them as people.
MC: You were often the only woman in the room while you were doing these negotiations. This was a couple of decades ago, and even now it’s still unusual for a woman to be in a position like that. How did you handle that? What was that like?
ND: It was a very different time. I remember going to an NHL Board of Governors meeting and I was probably about four months pregnant with my first child, and my sister and I scouted all over Western New York to find an outfit that would not show that I was expecting. Those were the days.
I remember going to the NHL offices in New York City. Gil Stein was the president for a very short period of time at that point in time. I had to deliver a memorandum on something that we were working on. I was about two days away from having my first child, and they could not get me out of there fast enough. They were very nice and also very worried.
I was fortunate. I was really fortunate. I work for good people. My mentor was Bob Swados, founder of the Sabres. And my other mentor was Gerry Meehan, who was the team’s general manager.
Bob would express his opinion of your work frequently and at high volume. You learned. He didn’t care what you looked like, what your sex was, how old you were. You needed to do a good job. And I will be forever grateful to him for giving me the opportunity to learn a lot because that was a good experience for me also in my teaching career.
MC: So a young woman comes up to you and says, “I would love to follow in your footsteps.” What advice would you give her?
ND: Happens all the time. We’re building a program where we’re trying to formalize the path that I followed by luck, accident, hard work, and people being kind. So we are doing our best to position our students so that things happen to them more naturally than the opportunities that I had to create for myself, if you will.
The first thing I would say is if you’re interested in sports, you have to have something in sports on your resume. Be the mascot. I was the official scorer for a Single A baseball club, one of the most fun jobs I ever had, by the way. That’s the type of thing you’ve got to do. And that gets you networking, that gets you into the business.
Of course I love my program. I think my program works great. We put our students in a position to network with people in the industry, to write and publish about the work that they’re doing and give them the opportunity to work on real life deals through our practicum. And that’s really important.
MC: One of our philosophies here at the AccelPro employment law community is that peers talking to peers can be a really valuable way to develop professionally and gain important insights. You touched on this a little bit, but I wanted to ask you directly how you’ve relied on peers, both inside and outside your organization to deal with tough situations and manage career decisions.
ND: It’s so important to have that network of supportive individuals. And you have to be part of that too. It’s a reciprocal obligation. I have a community of people at the University at Buffalo that I rely upon, whose judgment I trust in various positions—fellow faculty members, deans.
I love our people in the athletic department at UB. They’re just wonderful human beings. They do the right thing for the right reason. We are supportive of each other, and it’s great to have people like that. I’m close to our Title IX officer at UB, I think she does a fantastic job.
Title IX in particular right now is a thorny place. There are all kinds of concerns about diversity, equity, inclusion and transgender participation. Various states are passing laws regulating the ability of people with different gender identities to participate at various levels. So having peers whose judgment I trust to have difficult conversations with about these things is incredibly important.
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This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on April 18, 2024.
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