Proposed legislation would give Maryland college athletes the right to unionize
By RICK MAESE | The Washington Post | Published: February 8, 2019
More than seven months after Jordan McNair's death, Maryland state lawmakers have proposed a bill that would upend the college athletics model across the state and give athletes the right to unionize and collectively bargain over issues related to health and safety, as well as compensation.
Del. Brooke Lierman, D-Baltimore, proposed the measure this week and said recent events on college campuses have highlighted a growing need for an independent advocate who can work on behalf of athletes. Lierman cited McNair, the 19-year old Maryland football player who collapsed after suffering exertional heatstroke at a conditioning workout in May, and the hundreds of young Michigan State athletes who suffered sexual abuse at the hands of Larry Nassar.
"There's an inherently unequal playing field between student-athletes and the universities that they go to," Lierman said. "There's so much money involved, which has made it much more weighted against students who are coming to school on scholarships and playing, especially the revenue-producing sports. There needs to be a conversation and probably legislation to correct the imbalance of power that exists right now."
The bill would cover all of the universities in Maryland that field athletic teams and highlights four primary areas that would be open to collective bargaining: scholarship terms, insurance benefits, use of an athlete's image or likeness and the establishment of an independent advocate to work on behalf of athletes. The proposal challenges the NCAA's lucrative and time-honored model of amateurism that governs college athletics.
The bill, which has 18 co-sponsors, likely will face a long, steep climb in the Maryland legislature but also could spark conversation and debate about the governance of college sports and the protection of athletes. The University of Maryland admitted that its medical personnel failed to diagnose or treat McNair properly before his June death, and the University System of Maryland Board of Regents sparked outrage when it later recommended retaining coach DJ Durkin.
"It's important that we start a serious conversation about how Maryland's college athletes are being treated, and I'm glad we can start that conversation this year," Lierman said. "I'm only sorry that it took the death of a college student to get us to this place."
Maryland is in the process of implementing a variety of health and safety measures in the wake of McNair's death. A spokesperson said school officials are reviewing the proposed legislation and it's too early to comment. An NCAA spokesperson did not respond to a request for comment. Lierman said she has not spoken with anyone from the school's athletic department but did consult with the school's student government when crafting the bill.
"I've talked with student-athletes about this and so far have received positive feedback," said Jonathan Allen, Maryland's student body president. "The difficulty they're working with, with the current power structure in collegiate athletics and across the NCAA, it makes it difficult for these athletes to speak out against the status quo. I've had an athlete tell me they fear if they speak out it impacts their scholarship, education and their future."
If the proposal were signed into law, the legislation would present myriad complications for Maryland schools. College athletes are still governed by an intricate network of NCAA regulations intended to protect amateurism and ensure an even playing field. Even if state law allowed college athletes in Maryland to collectively bargain, they still could be subject to NCAA bylaws to maintain eligibility.
As revenue has grown, the number of outspoken critics and legal challenges to the NCAA's models has, too, but the governing body for college athletics has defended its rules at every turn.
"Many student-athletes are provided scholarships and many other benefits for their participation. There is no employment relationship between the NCAA, its affiliated institutions or student-athletes," Donald Remy, the NCAA's chief legal officer, said when a group of Northwestern University football players sought collective bargaining rights in 2014.
The National Labor Relations Board blocked those unionization efforts a year later. That board only oversees private entities; students at public institutions would be subject to state labor laws.
"What stands out here is there are members of a state legislature who understand the challenges that college athletes have in terms of trying to secure protections, in terms of really gaining a voice and some leverage to help determine critical parts of their lives at college athletes," said Ramogi Huma, executive director of the National College Players Association, who also worked with the Northwestern players.
The Maryland proposal is a novel one for state houses. Lawmakers in Ohio and Michigan passed bills in 2014 that specifically stated college athletes are not university employees and therefore could not unionize. North Carolina, on the other hand, passed a bill in 2017 year that established a "Legislative Commission on the Fair Treatment of College Student-Athletes," which was charged with exploring several issues, including health and compensation. The body is expected to issue a report by the end of the month that calls for the creation of a "protection commission" for athletes but stops short of demanding compensation or collective bargaining rights, according to a draft of the report reviewed by The Washington Post.
"If you look at other sports — multibillion-dollar industries — those players have unions, and they have them for a reason. They're a necessity," Huma said. "They're needed to keep them safe, needed for players to get a fair deal. This is really important. So to see state lawmakers stand up and try to put together a bill like in Maryland, it's very encouraging."
While collective bargaining discussions often focus on the difficult task of establishing a model for compensation, Lierman said it's equally important that "our student-athletes are taken care of, their health is taken care of, and they're listened to when they're on the field or off."
Lierman noted that since 2000, more than 30 college football players have died of exertional heatstroke. In recent years across Maryland, players at the state's flagship university as well as Towson and Morgan State have suffered from heatstroke. Football players at Navy and Frostburg State also have died after suffering injuries on the practice field.
"I think pressure has been building on universities and on the NCAA over the past decade to do right by our student-athletes," Lierman said. "I'd hope that we have reached a tipping point and we don't have to lose any more young people to make a change."
While McNair's death and the school's admission of its own missteps in treating the player alarmed many, Allen said the board of regents' mishandling of the situation reinforced the need for athletes to have an independent advocate safeguarding their interests. The Post reported in November that the regents recommended the College Park campus retain the athletic trainers who erred in treating McNair. Maryland defied the board and fired Durkin and two athletic trainers days later.
"We saw how these governing bodies can prioritize profits over the interests of college athletes and how the interests of college athletes don't always align with financial and political interests of these institutions," said Allen, the student body president.
As is often the case with complicated legislation, the proposal might not make it out of committee and go before the full body for a vote for a year or two. But Lierman is hopeful that state lawmakers can begin the debate now, while McNair's death and the ensuing controversy remain in the public conversation.
"It's time to ensure there's somebody standing up for these kids," she said, "and making sure they're safe and healthy, making sure they're getting a good education, not being assaulted, not being retaliated against when they ask for safe playing conditions. I think it's time for legislatures around the country to step in and do something, because the universities and the NCAA is certainly not doing it themselves."
The Washington Post's Sarah Larimer contributed to this report.