A New Season for Student-Athlete Organizing: What Stanford and Oregon State May Signal About the Next Phase

Recent organizing efforts at Stanford University and Oregon State University suggest student-athlete organizing may be taking different paths, from institution-level recognition to broader, conference-level collective bargaining. For colleges, universities, and conferences, those developments raise practical questions about who would bargain, at what level, and under what legal framework.

For more than a decade, the debate over student-athlete organizing has largely centered on a single legal question: whether student-athletes are employees entitled to organize and bargain collectively under existing labor law. Beginning with Northwestern University and continuing through more recent proceedings involving the University of Southern California (USC) and Dartmouth College, organizing efforts have largely sought to answer that question.

Within days of one another, Stanford football players announced formation of the first campus chapter of the College Football Players Association (CFBPA), while members of the Oregon State women’s basketball team petitioned for union representation through the United College Athletes Association (UCAA). Although both initiatives seek collective representation for student-athletes, they pursue markedly different paths. The Oregon State petition seeks recognition at an individual public university under state labor law, while the CFBPA is building organizations across institutions with the stated long-term objective of conference-level collective bargaining.

That distinction highlights a broader structural issue. Existing labor law is generally organized around bargaining between employees and individual employers—and organizing at public and private universities proceeds under different legal regimes. Yet many of the policies most directly affecting student-athletes, including scheduling, roster management, transfer rules, eligibility, and increasingly compensation, are shaped collectively through conferences and the National Collegiate Athletic Association (NCAA) rather than by individual institutions acting alone.

Whether the Stanford and Oregon State developments ultimately represent different routes to the same destination or different visions of collective bargaining remains to be seen. Additional questions may arise about broader impacts on women’s and Olympic sports and other aspects of campus life.

KEY TAKEAWAYS

• Recent organizing efforts at Stanford and Oregon State suggest that student-athlete organizing may be developing along different paths, with some organizations pursuing recognition through traditional labor law mechanisms at individual universities and others building organizations designed to support broader, conference-level collective bargaining.
• Those different approaches highlight a structural challenge facing college athletics: labor law generally operates at the institutional level—and differs between public and private universities—while many of the policies affecting student-athletes are increasingly established at the conference or national level.
• As organizing efforts continue to develop, colleges, universities, and conferences may need to confront questions that extend beyond employee status, including who would bargain, at what level, and under what legal framework.
• Organizers are pursuing multiple approaches while the legal framework continues to evolve. Colleges, universities, and conferences should use this period to evaluate governance structures, bargaining authority, and institutional preparedness rather than waiting for a single legal framework to emerge.

AN EVOLVING LEGAL LANDSCAPE

The Stanford and Oregon State efforts are unfolding as the economic and regulatory structure of college athletics continues to change. The recently implemented House settlement permits Division I institutions to share athletics revenue directly with student-athletes while preserving the NCAA’s position that student-athletes are not employees. Meanwhile, following approval by the US Senate, the US Congress is considering the bipartisan Protect College Sports Act, which would establish national rules governing issues including athlete compensation, eligibility, transfers, and enforcement without resolving whether student-athletes are employees entitled to organize and bargain collectively under federal labor law.

The result is an unusual dynamic: the economic relationship between institutions and student-athletes is changing more quickly than the legal framework governing labor relations. Schools are sharing revenue directly with athletes, conferences and the NCAA continue to exercise significant authority over matters affecting student-athletes, and Congress is considering a national regulatory framework. Yet collective bargaining, if it develops, must operate within a labor law system largely structured around individual employers and, in the case of public universities, varying state law regimes. That mismatch provides important context for the different organizing approaches now emerging.

DIFFERENT PATHS TO COLLECTIVE BARGAINING

The Stanford and Oregon State efforts illustrate two different ways student-athlete organizing may develop. Oregon State’s women’s basketball players are proceeding through a familiar model: seeking recognition of a bargaining unit at a single institution under the labor law applicable to that university. The CFBPA, by contrast, is seeking to establish football player organizations across multiple institutions, with the longer-term objective of conference-level collective bargaining.

The distinction may be more significant than a difference in organizing tactics. Institution-level organizing fits more readily within existing labor law structures, but it may provide a bargaining representative with limited ability to address policies established outside the institution. Conference-level organizing potentially aligns bargaining more closely with where many significant decisions affecting student-athletes are made, but it presents substantial legal and practical questions of its own—including whether and how institutions could bargain together and what role a conference could play when it generally is not the athletes’ employer.

Nor are the two models necessarily mutually exclusive. The Oregon State petition follows earlier UCAA efforts to pursue bargaining on a broader basis, including an effort involving more than 100 women’s basketball players and the Big Ten Conference and Southeastern Conference (SEC). That history suggests the choice between institution-level and conference-level organizing may not be as binary as the two recent developments initially appear. Organizers may pursue available institution-level processes while continuing to seek broader forms of representation or bargaining.

For colleges and conferences, that possibility is important. Institutions should not assume that a representation petition involving a single team or university necessarily defines the ultimate scope of an organizing effort—or that conference-level organizing will proceed independently of more traditional institution-based efforts. In fact, as evidenced by recent developments, colleges could be faced with multiple and divergent efforts at the same time.

LESSONS FROM NORTHWESTERN, USC, AND DARTMOUTH

The challenges presented by these different organizing models are not new. The Northwestern, USC, and Dartmouth National Labor Relations Board (NLRB or the Board) cases each tested whether traditional labor law principles could be applied to college athletics and, in different ways, exposed structural issues that extend beyond the threshold question of employee status.

In Northwestern University, the NLRB declined to exercise jurisdiction over scholarship football players’ representation petition. The Board did not decide whether the players were employees. Instead, it emphasized that asserting jurisdiction over a single private university in a conference composed predominantly of public institutions could undermine stability in labor relations because most conference members fell outside the Board’s jurisdiction. The decision highlighted a problem that remains relevant today: institution-level organizing can produce different labor regimes among schools that nevertheless compete under common conference rules.

The USC proceeding presented the employee status issue through an extensive factual record and was the only trial concerning the relationship among student-athletes, their universities, conferences, and the NCAA. That record highlighted the difficulty of separating athletics from the broader educational and institutional environment and raised practical questions about applying traditional employment concepts across different sports and student-athlete populations, including serious potential negative impacts on women’s and Olympic sports. Those issues have implications not only for employee status, but also for potential bargaining units, the effects that any bargaining structure could have across an institution’s athletics program, and the viability of certain programs or current structures.

Dartmouth presented yet another variation. Men’s basketball players voted to unionize and their bargaining unit was certified by the NLRB, but the representation petition was later withdrawn following extensive appellate briefing exposing logistical and legal impediments to organizing single sports or schools as well as the core academic (as opposed to employment) nature of student-athletes. The proceeding illustrates another feature of the current landscape: organizing strategy can develop against shifting administrative, political, and legal circumstances without producing a durable rule applicable across college athletics.

Taken together, these proceedings suggest that establishing employee status would answer only one of the questions presented by student-athlete organizing. The public-private jurisdictional divide, the appropriate scope of bargaining units, the relationship among institutions, conferences, and the NCAA, and the practical consequences of different bargaining structures would remain. The Stanford and Oregon State developments bring those questions into sharper focus because organizers are now pursuing models that implicate them in different ways.

IF ORGANIZING SUCCEEDS, WHO BARGAINS?

Even putting aside for purposes of discussion the issue of whether student-athletes could be considered employees (something the USC and Dartmouth cases proved is easier said than done), fundamental questions about bargaining structure would remain. The different organizing models presented in the Stanford and Oregon State efforts bring into focus a question that may become increasingly important if student-athlete organizing gains traction: who would bargain on behalf of colleges and universities?

At the institutional level, the answer may appear relatively straightforward. If student-athletes at a particular university are recognized as employees and form a bargaining unit, the university would ordinarily bargain as the employer. But that model becomes more complicated when the subjects of bargaining include matters that an individual institution does not control independently. Scheduling, eligibility, transfer rules, roster limits, revenue sharing, and other significant aspects of college athletics are increasingly shaped through conferences, the NCAA, or other collective governance arrangements.

Conference-level bargaining potentially addresses that mismatch by aligning bargaining more closely with where certain decisions are made. Existing labor law, however, does not provide an obvious mechanism for doing so. Conferences generally are not the student-athletes’ employers, and there is no established statutory framework requiring a conference to bargain on behalf of its member institutions.

The jurisdictional concern identified in Northwestern also would not necessarily disappear at the conference level. A conference may include private institutions subject to the NLRA alongside public institutions governed by different state labor regimes, some of which may limit or prohibit collective bargaining by public employees. Any conference-wide bargaining structure therefore would need to account for institutions subject to different labor laws.

Federal labor law permits voluntary multiemployer bargaining in other settings, but those arrangements generally depend on participating employers agreeing to bargain together and delegating bargaining authority to the multiemployer group. Whether—and on what terms—a comparable structure could operate in college athletics presents questions concerning both labor law and conference governance.

Moreover, if organizing is done by individual sport (as presented in both the Stanford and Oregon State efforts), conflicts may arise internally within athletic departments. Given the structure of most athletic departments and the nature of media rights and licensing revenue agreements, negotiations for just one sport or separate negotiations for multiple sports are inherently going to result in conflict and difficult decisions.

The Oregon State petition illustrates a related issue from the other direction. Although its athletes are seeking representation through a state process, many of the rules governing their athletic competition are established beyond the university itself. Thus, neither institution-level nor conference-level organizing necessarily resolves the disconnect between the legal framework governing representation and the broader structures through which college athletics is governed.

These issues suggest that the next significant questions may concern bargaining architecture as much as employee status. Institutions and conferences may need to consider who has authority to bargain, which issues can be negotiated at the institutional level, whether authority over other issues could be delegated to a conference or another entity, and how any broader bargaining structure would operate across different legal regimes. Although some of those questions may be addressed through existing labor law and governance arrangements, others may ultimately require a new statutory framework.

WHAT COLLEGES AND CONFERENCES SHOULD BE DOING NOW

The absence of a settled legal framework should not be viewed as a reason for institutions to defer planning. Recent developments suggest that organizers are pursuing multiple avenues toward collective representation at the same time that the legal, legislative, and economic framework governing college athletics continues to evolve. Colleges, universities, and conferences should use this period to assess how they would respond if organizing efforts expand.

That assessment should extend beyond traditional organizing preparedness. Institutions should understand which decisions affecting student-athletes are made at the university level and which are governed by conference or NCAA rules; whether existing conference governance documents address the authority to coordinate labor strategy or participate in bargaining; and how the different legal regimes applicable to public and private institutions could affect coordinated approaches. Institutions also should consider how potential bargaining obligations would interact with existing arrangements concerning revenue sharing, roster management, eligibility, and other aspects of the changing college athletics model.

Preparation also may require coordination beyond the labor function. The issues raised by student-athlete organizing can implicate athletics, academic affairs, university governance, conference relationships, and other institutional interests. As the USC proceeding demonstrated, decisions concerning one group of student-athletes may have consequences across an athletics program, including for other sports and student-athlete populations.

The appropriate response will differ by institution and conference, just as the organizing models themselves may differ. But institutions need not wait for employee status, a representation petition, or federal legislation to be resolved before examining these questions. Organizers are developing strategies within the existing uncertainty. Colleges and conferences should likewise understand their own governance, authority, and options before those issues arise in an active organizing or bargaining context.

LOOKING AHEAD

Whether the Stanford, Oregon State, or other organizing efforts ultimately succeed remains uncertain. What these developments demonstrate is that student-athlete organizing is not proceeding along a single path. Organizers are pursuing institution-level recognition, broader organizational structures, and potentially conference-level bargaining while the governing legal framework continues to develop.

For colleges, universities, and conferences, the significance lies not only in the outcome of any particular organizing effort, but in the questions those efforts are beginning to present. Employee status will remain important, but it will not by itself resolve questions concerning bargaining units, bargaining authority, conference governance, or the interaction among institutions subject to different labor laws. As organizing strategies evolve, those practical questions are likely to become increasingly important.

Institutions that begin addressing those issues now will be better positioned to respond as the legal landscape develops.

HOW WE CAN HELP

Our labor-management relations team has represented colleges and universities in several significant labor proceedings involving student-athletes, including the USC and Dartmouth matters. Drawing on that experience, our lawyers advise colleges, universities, athletic conferences, and other stakeholders on student-athlete organizing, collective bargaining strategy and preparedness, conference governance, and related legislative and regulatory developments.

As organizing efforts continue to evolve, we work with institutions and conferences to evaluate not only the immediate legal questions presented by organizing activity, but also the governance, bargaining, and institutional issues that may shape the next phase of college athletics.

For more information on our work and insights across the evolving college sports landscape, visit our US College Sports page.