CHAMPAIGN, Ill. — When student-athletes sue the NCAA, they win the initial round of litigation almost half of the time. But according to a new study from a University of Illinois expert in labor relations and collective bargaining in athletics, the NCAA eventually wins more than 70 percent of the time on appeal – a finding that could pressure both groups to adopt a new model for amateur athletics that more closely aligns itself with the employment relationship.
Michael LeRoy, a professor of labor and employment relations, compiled a database of 81 state and federal court rulings from 1973 to 2014 in which students sued the governing body of college athletics.
According to the study, students won all or part of 49 percent of first-round court rulings, but the NCAA won in 71 percent of second-round cases, and won another 71 percent of third-round appeals.
"The first round of litigation is essentially a coin flip, but the win-probability for the student-athletes quickly plummets in subsequent rounds of appeals," said LeRoy, author of the recently published legal casebook "Collective Bargaining in Sports and Entertainment."
Venue also played a significant role, the study found. Students won 75 percent of first-round decisions in state courts, while the NCAA won 61 percent of first-round federal decisions. Forty percent of cases in the study involved football, but the rest involved a wide variety of NCAA sports.
The NCAA's record of winning most cases on appeal suggests that the ultimate outcome will favor the association, LeRoy said.
"Under the Sherman Act, courts will probably find that college football players are in a commercial labor market, but will likely also conclude that NCAA rules have a pro-competitive effect on the business of college football – a ruling which, again, favors the NCAA," he said.
But even occasional initial victories by student-athletes means that the NCAA will likely be pressured to adopt a new model of amateurism that mimics the employment relationship, LeRoy said.
"The most vexing problem for the NCAA could be the soft power of pickets, boycotts and other concerted activities directed by a players' union and their supporters against NCAA sponsors and business partners," he said.
Most of those actions would be sheltered from an injunction under the Norris-LaGuardia Act, thereby pressuring the NCAA to make significant reforms, LeRoy said.
"Future courts are unlikely to order the NCAA to abandon its definition of amateur athletics," he said. "Without enabling legislation that regulates this private association, courts have no authority to surgically snip the amateur competition clause in NCAA bylaws for football, and leave it intact for non-revenue sports. Even if a district court favors students in an antitrust case involving football, it will be hamstrung in ordering remedies because damages and court supervision would come back to hurt women's sports that depend on the major revenue-producing sports like football and basketball for financial support."
For decades, judges have fostered changes in how athletes are paid in professional baseball, football, basketball and hockey. It's only recently that "labor" has entered the lexicon of NCAA litigation involving antitrust and unionization claims. The judicially created term "athletic labor," coined by a federal appeals court in 2012, signals a meaningful turn in favor of students, according to LeRoy.
"It will likely advance their drive for pay and other enhancements in exchange for their participation in sports," he said.
Already, a regional director's ruling in the Northwestern University case before the National Labor Relations Board has accelerated the NCAA's efforts to compensate students. But while the facts favor classifying college football players as employees, the law supports the NCAA's amateur-athlete model, according to LeRoy.
"Even though schools profit off the sweat of college football players, a federal appeals court is unlikely to view this commercial reality as legal justification to alter the NCAA's amateurism model," he said.
According to LeRoy, the future of labor rights in college sports will likely bring more court rulings involving the National Labor Relations Act, Norris-LaGuardia Act and the Sherman Act.
"After the National Labor Relations Board rules in the Northwestern University case, a federal appeals court, and possibly the Supreme Court, will decide if college football players are employees under the NLRA."
The study is titled "Courts and the Future of 'Athletic Labor' in College Sports."