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“I’d be very interested in exploring it and even broadening the law if necessary to give more rights to student-athletes because the blunt fact is that they are in a very unequal bargaining position when it comes to their rights and interests,” Blumenthal said. “They are in many ways compensated by schools for playing sports, but they have no real rights in that bargaining process and their rights deserve great respect legally as well as practically.”
But Sen. Richard J. Durbin, D-Ill., also a member of the Judiciary Committee, does not see as much nuance in the case.
“It’s hard for me to wrap my head around the idea that they’re employees and would be part of a labor organization,” he said.
Durbin has a particular interest in the players’ attempt to unionize, beyond the fact they filed at the Chicago office of the National Labor Relations Board, because a large part of the players’ complaint was about access to health care. Durbin held hearings in 2012 on concussions in the NFL and introduced legislation to create youth concussion laws in 2013.
“There are legitimate player issues relative to the economics of college football, the compensation of any players — and they’re strictly limited now — and the concussion protocols,” Durbin told CQ Roll Call. “At the best schools, [athletes] generate a huge amount of revenue for the school, and I think they need to be treated accordingly.”
Still, the players face long odds against the multibillion-dollar interests of the NCAA, which does not pay nor extend benefits beyond tuition to the athletes who play a significant role in generating its cash flow.
Bilas gave several examples of how the athletes could make their employment case, which he admitted would be a “long legal slog.” He cited college baseball and hockey players already drafted and under contract with professional teams. And he noted that in recent weeks, there have been NCAA basketball games in which players still played — even though students’ classes were canceled as result of massive snowstorms and freezing temperatures.
“The NCAA wants to say they’re not a cartel, but they are. ... All of the athletes, revenue and non-revenue, they’re being exploited. Everyone else is making fair-market value for what they do, every student, every administrator, every coach. That’s exploitation.”
Sen. John Hoeven, R-N.D., illustrated Bilas’ first point with an example from his home state. “University of North Dakota hockey, almost every year, they have underclassmen drafted by NHL teams that can go professional after two years of college and get professional contracts. Now, that doesn’t happen sometimes, that happens every single year and sometimes [for] four and five players,” he said. “So the fact that this whole discussion is reaching into collegiate levels, whether it’s football or hockey, you pick a sport, is not surprising.”
Like most powerful sports entities, the NCAA has a Washington lobbying presence, which certainly would engage if Congress were to take up this issue. In an email, NCAA Director of Public Affairs Stacey Osbourn told CQ Roll Call, “Our DC contacts are available to answer any questions they may receive from the Hill.”