Back Between the Lines: Can Collective Bargaining Provide a Playbook To Frame the NIL Moneyball?
3.3.2026
In 1880, Yale faced Harvard under Walter Camp’s newly crafted rules, creating what is now recognized as modern American football. While we cannot know with certainty what motivated those Ivy League students to take the field, it is likely they were animated by the ideals of amateur competition and the desire to transform from boys to men. The foundational elements of discipline, dedication, preparation, and attention to detail remain essential today. Yet college football – and most of college sports – now operate in a landscape increasingly defined by commercialization, lucrative media rights, and direct financial compensation to athletes.The year 2021 marked a watershed moment with the formal introduction of name, image, and likeness rights. Student-athletes could now own their personal brands and monetize them. Although agents and alumni had long sought creative ways to incentivize athletes – sometimes through illicit benefits such as off-the-books payments or cars – the NCAA continued to prohibit direct payments from schools to athletes. That world has now changed.
The landmark House v. NCAA settlement in June 2025 accelerated the final transformation of the student-athlete model by authorizing direct payments to, and revenue sharing with, college athletes. Under the settlement, participating Division I schools may distribute up to $20.5 million annually in direct compensation to athletes, with that amount scheduled to increase over time. The House settlement not only attempts to resolve years of antitrust litigation, but also dismantles core elements of the NCAA’s amateurism model by replacing scholarship limits with roster caps and establishing a proposed regulatory framework for name, image and likeness deals. As college athletics begin to mirror professional leagues in both structure and economics, the legal framework governing it remains tethered to obsolete conceptions of amateurism that no longer exist. The result is a chaotic free-for-all that threatens the long-term stability and integrity of college athletics.
College Sports in Transition: A Rapidly Changing Landscape
For more than a century, amateurism served as the cornerstone of college sports. Love of the game outweighed financial opportunity. When the NCAA was founded in 1906, the amateurism model aligned closely with the educational missions of universities and emphasized sport as a means of cultivating life skills in young men – and, 75 years later, women – preparing them to become well-rounded adults and engaged citizens. College sports fostered character and school spirit, offering lifelong bonds among students and alumni.
The landscape has now fundamentally changed. Competition, team development, discipline, and hard work remain central values, but the ecosystem surrounding college sports has transformed dramatically. Television broadcasts that began in the mid-20th century have expanded to include digital streaming, social media platforms, and sophisticated data analytics, pouring billions of dollars into college athletic departments and conference budgets. Football and basketball dominate the national marketplace, yet through national, regional, and local broadcasts, college sports of every kind are now viewable year-round on televisions, computers, and mobile devices.
Universities and athletic conferences negotiate enormous media rights agreements, routinely sell out stadiums, and benefit from merchandise, licensing, and corporate sponsorships – all while attempting to maintain the traditional “amateurism” model. It was inevitable that the creators of these commercially valuable products – the athletes themselves – would ultimately demand a share of the revenue they generate. The House settlement merely formalized a shift that had become unavoidable: direct compensation for college athletes as a condition of sustaining modern athletic programs.
Legitimizing college athletes’ ability to establish true market value for their name, image and likeness opened the floodgates and fundamentally altered the dynamics of college sports. No longer bound by school loyalty or regional ties, talented athletes began offering their rights to the highest bidder. Colleges and universities have struggled not only to meet these rapidly escalating financial expectations, but also to preserve the legal fiction that student athletes are not employees. Extending employee classification to athletes for labor and employment purposes would dramatically increase financial exposure and operational complexity. As a result, athletes are now compensated for their personal brands rather than their on-field production.
The post-House settlement framework was intended to provide stability by establishing a unified system of direct compensation, an oversight committee, and clearer rules of engagement.[1] Instead, it has fallen short. A lack of transparency in name, image and likeness negotiations, combined with the emergence of player representation without meaningful guardrails, has produced a marketplace resembling the Wild West – one where the richest programs grow richer and competitive balance erodes. Without enforceable standards for valuation, contract structure, or institutional conduct, a clear and present danger now threatens the long-term viability of sustaining a broad range of collegiate athletic programs.
Time for a New Playbook
As the industry continues its rapid transformation, the search for a sustainable regulatory structure has accelerated. Traditional labor and employment lawyers are increasingly focused on a solution once viewed as unthinkable in college sports: a collective bargaining agreement. Historically, universities have vigorously opposed such efforts. Beyond formally ending the amateurism model, classifying athletes as employees would trigger enormous legal and financial exposure. Every major law governing the workplace – workers’ compensation, wage‑and‑hour obligations, unemployment insurance, health care mandates, and retirement plans – would immediately become relevant. The potential cost implications for institutions would be profound.
Yet despite these legitimate concerns, the current model is untenable. Division I programs with massive media‑rights revenues, lucrative branding opportunities, sold‑out stadiums, robust merchandise sales, deep‑pocketed alumni networks, and high‑performing football and basketball teams are already paying compensation levels that resemble the National Football League and National Basketball Association contract structures.[2] Ironically, these payments purport to be for name, image and likeness and branding – not athletic performance. Yet as soon as performance‑based criteria or institutional “control” enter the equation, the legal barriers preventing employee status begin to erode.
The instability does not only affect high‑revenue sports. The broader ecosystem of collegiate athletics is also at risk. While many Olympic and nonrevenue sports – tennis, crew, softball, fencing, and others – do not generate substantial financial returns, they contribute meaningfully to the educational mission of universities and the personal development of students. These programs cultivate teamwork, resilience, leadership, and community, and they represent the historical and cultural fabric of college athletics. Title IX further expanded opportunities, adding women’s sports that now command significant national attention, particularly in basketball and soccer. Preserving these programs is essential to maintaining the broader goals of higher education.
This raises the central question: What solutions remain? Increasingly, collective bargaining stands at the forefront. In professional sports – across the NFL, NBA, WNBA, MLB, Major League Soccer, National Women’s Soccer League, and others – collective bargaining agreements create clear frameworks that govern the relationship between athletes and management. They establish rules of engagement, define rights and obligations, introduce transparency, and set enforceable standards.[3] Disagreements still occur, but everyone operates under an agreed‑upon system.
In the collegiate environment, however, resistance persists largely because collective bargaining is linked to employee status – a classification institutions fear for the reasons already discussed.
Under the National Labor Relations Act, private‑sector employees have the right to organize and bargain collectively. But employee status under the law also tends to trigger obligations under the Fair Labor Standards Act and a host of additional federal, state, and local employment laws – including Equal Employment Opportunity Commission regulations, the Employee Retirement Income Security Act, Occupational Safety and Health Administration compliance, and numerous administrative requirements. Public universities introduce further complexity: they are not subject to the National Labor Relations Act and several states – including Wisconsin, North Carolina, and Texas – either restrict or ban collective bargaining for public-sector employees altogether. These jurisdictional inconsistencies amplify the difficulty of implementing a uniform national model.
Efforts to unionize college athletes to date underscore the steep legal hurdles that continue to impede collective action under the current framework. The most recent example – the Dartmouth men’s basketball team – briefly secured a groundbreaking regional NLRB decision in early 2024 recognizing the players as employees with the right to unionize, but the ruling was vacated after Dartmouth withdrew varsity status from the team, rendering the petition moot and avoiding appellate review.[4] A decade earlier, the Northwestern football team mounted the first major unionization attempt, winning a regional decision but ultimately being denied relief when the full NLRB declined jurisdiction, citing concerns about inconsistent regulation across public and private institutions.[5] These failed efforts illustrate the structural barriers baked into the National Labor Relations Act: uneven coverage of public universities, fragmented institutional control, and the persistent reluctance of the NLRB to impose a national labor regime on a collegiate system lacking uniform employment characteristics.
Thus, the question naturally follows: How might collective bargaining work in college sports despite the classification problem? Is there a way to grant student-athletes bargaining rights without designating them as employees?
Potentially, yes.
Can Bargaining Rights Be Granted Without Triggering Employee Status?
To address these challenges, this article proposes two legal mechanisms to grant bargaining rights without classifying student-athletes as “employees.”
The first mechanism involves federal legislation modeled after California’s recently enacted Assembly Bill 1340, which permits hundreds of thousands of ride-share drivers to unionize and engage in collective bargaining while maintaining their classification as independent contractors.[6] The law achieves this by exempting such workers from state and federal antitrust statutes that typically prohibit collective action among independent contractors and by requiring that the entities representing the drivers be driver-led organizations associated with conventional labor unions. By creating a statutory carve-out that exempts the bargaining process from antitrust concerns while preserving non-employee status, the legislation establishes a third category of worker representation that may provide a viable blueprint for college athletics. The law went into effect on Jan. 1, so the breadth and effectiveness of the resulting benefits of this process for drivers will remain to be seen. Nonetheless, a similar legislative framework could be developed for student-athletes, granting them collective bargaining rights while preserving their non-employee status.
Another option is executive action. The president could issue an executive order granting all college athletes the right to engage in collective bargaining, similar to Executive Orders 10988 and 11491, which extended such rights to federal employees.[7] Prior to these orders, federal workers were prohibited from engaging in collective bargaining.
Much like the current political landscape of college athletics, these executive orders were issued during a time when demands for labor rights for public employees were growing and Congress was reluctant to legislate such protections. Applied to college athletes, such an order could carve out a new category of labor rights tailored to the unique structure of collegiate sports.[8]
A Potential Moneyball Solution
Even with bargaining rights in place, the structure of the bargaining unit presents a significant challenge due to the sheer diversity and scope of the college athletics ecosystem. With over 1,000 institutions, dozens of sports, and athletes whose roles and visibility vary dramatically, the notion of a single bargaining unit for all of college athletics is impracticable and unworkable. The heterogeneity of college sports demands a more flexible model – one that can accommodate variation while preserving core protections. In this regard, a bargaining structure exists that captures the vast diversity of college athletics. That entity is the Screen Actors Guild – American Federation of Television and Radio Artists.
SAG-AFTRA represents over 160,000 performers across film, television, radio, commercials, and digital media, and has developed a segmented bargaining model that allows it to represent a wide array of workers with distinct needs and working conditions.[9] Rather than negotiating a single contract for all members, SAG-AFTRA organizes its bargaining units by sector (i.e., theatrical productions, commercials, interactive media, and broadcast journalism), each with its own tailored agreement. These contracts reflect the specific economic realities and professional standards of the sector in question, while still adhering to a national baseline of protections for wages, health benefits, and workplace safety.
This segmented approach is particularly instructive for college sports. Just as SAG-AFTRA negotiates separate contracts for actors in commercials versus those in feature films, a college sports bargaining framework could segment athletes by sport, conference, or revenue classification. For instance, football players in Power Four conferences could bargain under one agreement, while athletes in Olympic sports or nonrevenue programs might be covered by another. Such segmentation would allow for nuanced representation that accounts for the vastly different economic and physical demands placed on athletes across the collegiate spectrum.
Moreover, SAG-AFTRA’s use of centralized employer representatives offers a model for streamlining negotiations in college sports. Rather than requiring each university to negotiate individually, a third-party entity could potentially represent institutions or conferences in collective bargaining, thereby reducing administrative burden and mitigating antitrust concerns. This structure would also facilitate the creation of a national baseline agreement, ensuring that all student-athletes receive core protections regardless of sport or school.
Back Between the Lines
The time for creative thinking is here. Bargaining is already gaining traction in various quarters, including among Power Four officials, with University of Tennessee Athletic Director Danny White openly calling for it to be adopted as a solution.[10]
In addition, several bills in Congress and executive actions are also attempting to address the evolving complexity of college sports. None, however, resolve the labor and employment law dilemma of classifying student-athletes as employees.[11] A hybrid legal solution – granting bargaining rights without employee status and adopting a segmented bargaining model – offers a balanced and sustainable framework. To preserve the new opportunities for athletes and to sustain the viability of a multiplicity of college sports experiences, all parties need to get back between the lines.
This article appears in a recent issue of the Entertainment, Arts & Sports Law Journal. For more information, please visit nysba.org/easl.
Michael Marino is a senior partner at Seyfarth Shaw LLP and has successfully negotiated hundreds of collective bargaining agreements and related deals with unions, athletes, and celebrities across the sports, music, and entertainment industries. He was elected to the College of Labor and Employment lawyers and previously served as deputy assistant general counsel of the Navy for labor relations. Marino earned his LL.M. in labor law from Georgetown University, his J.D. from Syracuse University, and his bachelor’s from Cornell University’s School of Industrial and Labor Relations. Before entering private practice, he served as a captain in the United States Marine Corps and later as special counsel to the secretary of the Navy.
Milo Young is a 2026 J.D. Candidate at Fordham University School of Law. He works as a law clerk in Seyfarth Shaw LLP’s sports and entertainment practice group and will join the firm full‑time as a senior fellow in the fall. Young graduated from McGill University with a degree in industrial and labor relations, where he also competed as a varsity baseball player. He has spent his summers working at various law firms and in labor relations departments, with a particular interest in the intersection of labor law and athletics.
The authors express their sincere gratitude to the thoughtful insights and reflections contributing to this important topic to Bob Buch, Ivan Smith, Alison Silveira, partners in the sports and entertainment practice group at Seyfarth, and with Seyfarth associates Ian Capell and Elliot Fink.
Endnotes:
[1] Seyfarth Shaw LLP, Green Light for a New Era: Final Approval of House v. NCAA Settlement Ushers in Historic Change for College Athletics—and a Complex Compliance Roadmap for Schools, JD Supra (June 10, 2025), https://www.jdsupra.com/legalnews/green-light-for-a-new-era-final-6247113/; Ralph D. Russo, CSC Participation Agreement and College Sports Enforcement, N.Y. Times Athletic (Jan. 14, 2026), https://www.nytimes.com/athletic/6971878/2026/01/14/csc-participation-agreement-college-sports-enforcement/.
[2] During the 2025-2026 football season, 15 quarterbacks in the NCAA each made over $2 million from their NIL deals. College Football’s 30 Highest‑Paid Players in 2025, from Arch Manning to Jeremiyah Love, Yahoo Sports (Sept. 19, 2025), https://sports.yahoo.com/article/college-footballs-30-highest-paid-151217403.html.
[3] Like the collective bargaining agreements of other professional sports leagues, the current NFL CBA (which runs through the 2030 season) addresses many of the same issues present in college sports today. Collective Bargaining Agreement Between the NFL & NFLPA (Mar. 15, 2020), https://nflpaweb.blob.core.windows.net/website/PDFs/CBA/March-15-2020-NFL-NFLPA-Collective-Bargaining-Agreement-Final-Executed-Copy.pdf.
[4] Derrick Bryson Taylor, Dartmouth Basketball Players Vote to Unionize in First for College Sports, N.Y. Times (Dec. 31, 2024), https://www.nytimes.com/2024/12/31/us/dartmouth-basketball-unionize.html.
[5] Ben Strauss, N.L.R.B. Says Northwestern Football Players Cannot Unionize, N.Y. Times (Aug. 17, 2015), https://www.nytimes.com/2015/08/18/sports/ncaafootball/nlrb-says-northwestern-football-players-cannot-unionize.html.
[6] Laura A. Pierson‑Scheinberg, Assembly Bill 1340: California Gives Gig Drivers the Right to Organize, California Workplace Law Blog (Oct. 6, 2025), https://www.californiaworkplacelawblog.com/2025/10/articles/labor-law-and-unions/assembly-bill-1340-california-gives-gig-drivers-the-right-to-organize/.
[7] Exec. Order No. 10988, 27 Fed. Reg. 551 (Jan. 19, 1962); Exec. Order No. 11491, 34 Fed. Reg. 17,605 (Oct. 29, 1969).
[8] Notably, soon after the issuance of Executive Order 11491, much of the federal government civilian workplace became organized. We would expect a similar reaction by college athletes should collective bargaining become allowable.
[9] About, SAG‑AFTRA, https://www.sagaftra.org/about.
[10] Dan Morrison, Tennessee AD Danny White Calls for Collective Bargaining to Fix College Sports, ON3 (Dec. 17, 2025), https://www.on3.com/news/tennessee-ad-danny-white-calls-for-collective-bargaining-to-fix-college-sports/.
[11] Although the SCORE Act explicitly prohibits student-athletes being classified as employees, it has repeatedly stalled and is unlikely to pass through Congress. Notably, none of the other bills discuss this issue.
