The debate around potential collective bargaining between universities and college athletes continues to grow with the University of Tennessee recently going so far as to engage in a mock labor negotiation with its men's basketball team.

At the same time, a potential Major League Baseball lockout looms, as team owners and the players union remain at odds over a potential salary cap and other issues.

As universities, legislators, and others consider the future business and legal landscape of college athletics, one potential development in the baseball labor dispute deserves particular attention. Specifically, as reported in the Wall Street Journal, the players are considering what some have called the “nuclear option” a potential disclaimer of interest. This would involve the players declaring that their union no longer represents their bargaining interests. The purpose of this tactic would be to try to bypass any applicable legal exemptions relating to collective bargaining that would preclude the players from bringing an antitrust lawsuit against Major League Baseball. The players' argument would likely be that the disclaimer does away with any bargaining relationship that the applicable exemptions are designed and intended to protect. The owners would clearly contest this tactic, and whether it would succeed in bypassing any applicable exemptions is unclear.

If some form of collective bargaining is introduced and deployed in college athletics, then any potential disclaimer of interest by college athletes could prove even more problematic for universities than it could for a professional sports league. As the Tennessee mock negotiation reflects, unlike Major League Baseball and other leagues, a singular union is unlikely to represent the interests of all college athletes at once in any labor negotiation. Athletes in different sports with significantly different revenue streams, markets, etc. are unlikely to have completely aligned interests as to how college athletic revenue should be divided. In their recent exercise, Tennessee negotiated specifically with representatives of and for its men's basketball team, which reflects an understanding and intent that collective bargaining would require separate negotiations with its football team, women's basketball team, and others, given that each would constitute a separate bargaining unit with its own unique community of interests.

In the context of college collective bargaining (which would almost certainly involve some form of employee status of athletes), universities should consider how they would handle or resolve the possibility that unions/representatives for some sports engage in labor negotiations while others choose or reserve the option to disclaim interest. For example, a school might reach a labor agreement with athletes for every sport other than football, including terms such as a salary floor/cap for those respective teams. However, the school may not then be able to reach an agreement with the football team's representatives, potentially because the salary floor it seeks does not work in light of the agreements with other sports or for any number of other reasons. In that scenario, the university could face a football-specific disclaimer and subsequent antitrust lawsuit despite its other efforts. Further, in that scenario, the outcome of any such suit could affect the terms and feasibility of the agreements reached with the other groups of athletes. Whereas a potential disclaimer of interest creates uncertainty and risk for the Major League Baseball owners, it could create even greater legal problems for universities trying to simultaneously negotiate and reach agreements with multiple distinct bargaining units.

Something constituting or akin to collective bargaining may well be necessary in college athletics. But it will be essential for all parties to understand that the process of such negotiations will likely prove even more legally and logistically difficult than it does in professional sports leagues. As baseball's labor dispute unfolds, the NCAA and its universities should be paying close attention to all actual and potential actions that bear on how collective bargaining can or should unfold in college athletics.

The players could respond to the lockout by deploying a complex, largely unsettled legal maneuver with potentially significant ramifications. It’s called a disclaimer of interest—and it is a tactic other sports unions have used to try to gain leverage in labor negotiations for decades.

www.wsj.com/...