North Carolina AD Bubba Cunningham weighs biggest questions around collective bargaining, athlete employment

Following President Donald Trump’sexecutive order on college sports last week, the idea of athlete employment is in the spotlight. Trump instructed the National Labor Relations Board to reaffirm college athletes are not employees.

All the while, the SCORE Act is on track for the floor of the House of Representatives, and it would also declare athletes are not employees. But North Carolina athletics director Bubba Cunningham said collective bargaining could still be worth exploring if the bill fails to pass the chambers of Congress.

Speaking on Athletes.org founder Jim Cavale’sNow It’s Legal podcast, Cunningham pointed out the complexities and questions that come with the idea of athlete employment and collective bargaining. One of the key issues is the difference in revenue between sports, not to mention Title IX. That’s why there would be multiple factors to consider.

“The SCORE Act … I think may be a step in the right direction,” Cunningham said. “I’ve seen a lot of people that are now already against the SCORE Act. But I think there’s a lot of really good things in that bill that would make some sense. If that doesn’t happen, I do think collective bargaining is a very good avenue for us to pursue. But you understand the complexities of that. There are 500,000 student-athletes in the NCAA. We have 28 teams. We have 800 student-athletes, 100 of which play sports that generate more money than they spend.

“So how do you kind of tease out the differences between students that participate in sports that generate revenue? How does Title IX fit into that equation? How do you get to a position where you can say, ‘Okay, this set of students, we’re going to treat differently and allow them to collectively bargain because they generate a lot of revenue. But this group of students over here are going to be treated differently.’ We’re struggling with that as an industry. We’re struggling with that as a nation, quite frankly, because we don’t know where Title IX fits, we don’t know where Title VII fits and we’ve got to figure out, how do we change the economic model and comply with federal law? So what I think the biggest thing we need to find is, what is a common space that has legal protection that we can get comfortable with?”

‘Is there a way for students to collectively bargain and remain students?’

With regard to collective bargaining, Bubba Cunningham said one of his biggest questions is if that would be possible without employment status. A now-rescinded memo from the Biden administration stated they viewed college athletes as employees of their institutions under the National Labor Relations Act.

Based on his conversations with employment lawyers, Cunningham learned how hard it is to differentiate between students and employees. That’s not to mention different state laws, as well as public vs. private universities and a governance structure.

“The employment lawyers that I talked to said, it’s hard to differentiate if you’re required to be somewhere for an extended period of time, perform a certain kind of work and these are the requirements to participate – that looks like an employee. Not a student. … Is there a way for students to collectively bargain and remain students, and not become employees?” Cunningham said. “Because you have all of the different laws by state, whether it’s a right-to-work state or not. You have public schools and private schools. And you have done a really good job of trying to segregate those entities into smaller groups and say, ‘Okay, maybe this group should be allowed to collectively bargain.’

“Then, we’d have to change some NCAA rules that would allow that portion of the governance structure to work differently than the rest of the governance structure. That’s what we’re working on. We’re heading in the right direction, and I think we’re headed in the right direction. I think it’s just going to take some time to get there.”

Bubba Cunningham: ‘Incumbent’ to explore collective bargaining

As for when an answer could come on the idea of collective bargaining, Bubba Cunningham said he hears frustrations about why it isn’t happening right now. He noted the ever-changing landscape, especially with federal legislation in the works – something he didn’t think could happen a couple years ago.

With that, there are multiple layers beyond Congress. It then goes to the state level, then the conferences, then the schools. That’s why Cunningham said it will take time to decide if college sports could go down the path of collective bargaining.

“Everyone wants to have an immediate answer – and I know that people get frustrated and say, ‘Hey, we know we’re going to collectively bargain. Let’s just do it right now,'” Cunningham said. “I do think you have to kind of bring people along. I didn’t think, two years ago, that we’d have much chance of getting any kind of bill through Congress. Well, it’s not through, but we’ve had one that’s been introduced. Now, it’s getting shot at from all different sides. The idea that politics are local.

“So we’ve got Congress now at least talking about it. … The next layer of that’s going to be at the state level. I’m at a state school. There’s a lot of state schools out there that have governors and have [attorneys general] that feel differently about the NCAA and the national governing body. We’ve got to bring all those people along. It’s incumbent on all of us in the industry to really examine it … is, what is the best way to economically support intercollegiate athletics today? And that is the broad group of the national governing body, the smaller group of a conference and then, we’re all the way down to a school and the individual students. It all changes depending on the perspective that you have.”