The primary doubt about unionizing college football is that D-I schools fall under three different legal regimes—the National Labor Relations Act (private sector only), state labor laws (some states allow collective bargaining for higher education, e.g., Illinois), and no labor law (states in which all SEC schools are located). How can you have uniform rules of competition? The lead attorney for players suggests the NLRB’s new joint employer model is a solution. He means that the NCAA is a joint employer with Northwestern. He reasons: The NCAA is a private entity, therefore, schools such as Alabama fall under the NLRA because this private entity sets much of the regulations for compensating players. Well, this solves the labor law fragmentation problem. This approach is aided by the NLRB’s recent announcement that it is considering returning to its 1970s definition of a joint employer (broad concept of joint agency). See here: http://www.natlawreview.com/article/nlrb-advice-memo-provides-additional-guidance-joint-employer-standard. The matter also involves McDonalds in a high-stakes enforcement action. https://www.nlrb.gov/news-outreach/fact-sheets/mcdonalds-fact-sheet. In Part III, I’ll share my doubts about this ingenious approach.
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