On March 26, 2014, Peter Sung Ohr, a regional director for the National Labor Relations Board (NLRB), issued a landmark ruling that football players at Northwestern University are allowed to form a union. The college sports world erupted. Naturally, Northwestern immediately challenged the ruling. In the meantime, the case leaves players and universities with more questions than answers. Some athletes want unions, universities and the National Collegiate Athletic Association (NCAA) are fighting back, and fans are wondering if this will impact their BCS Bowl viewing parties. What exactly does this all mean, and are we slowly inching toward paying college athletes?

What is the case for unions?

Ohr’s ruling cites several important factors as reasons football players at Northwestern should be treated as university employees and therefore, allowed to unionize:

1. The football players are not primarily students. Players typically spend 40 to 50 hours per week playing football, which is more time than most people spend at a full-time job. This is also more time than the players spend on academics. Some players make the argument that the intense football schedule means practices interfere with schoolwork and limits their ability to take certain courses.
2. Northwestern has significant control over its players similar to the control employers exert over their workers. Scholarship recipients sign a tender which outlines the conditions of their scholarship. The agreement stipulates players’ behavior, requires housing leases be approved by a coach, and even states a player must accept a coach’s friend request on social media. Additionally, players must sign away rights to their image and likeness.
3. The University recruits players chiefly on the basis of football ability. When scouting a player, academic skills are secondary to football, showing that the primary duty of a scholarship recipient is not to study, but to play football.

Listen to a more in-depth explanation of the ruling below:

What do the players actually want?

The College Athletes Players Union (CAPA) is the formal entity created to represent Northwestern’s players in a union. CAPA was formed by former college athletes, including former Northwestern quarterback Kain Colter, as an offshoot of the National College Players Association (NCPA), an advocacy group. Rather than fighting for pay, the union is about giving college athletes a seat at the negotiating table. The NCPA outlines 11 goals which are shared by CAPA and Northwestern’s players in their “Blueprint for Change”:

1. Minimize athletes’ risk to brain trauma by reducing contact practices, providing concussion experts, and funding research.
2. Raise the scholarship amount so a “full scholarship” will cover the actual cost of attendance, including incidentals and travel home.
3. Ensure players do not pay sports-related medical expenses out of pocket.
4. Increase graduation rates by reducing games that take place during the week and investing more in education.
5. Give students a non-athletic scholarship to continue their education if their athletic scholarship is eliminated.
6. Prevent universities from eliminating the scholarship of an athlete who suffered a permanent injury from the sport.
7. Enforce uniform safety guidelines to prevent injuries.
8. Eliminate restrictions on legitimate employment for student-athletes. Right now, athletes are not allowed to make any money for any reason.
9. Prohibit punishment of athletes who have not committed a violation. Currently, NCAA sanctions can punish entire programs for years.
10. Guarantee an athletic release from universities if athletes want to transfer schools.
11. Allow all college athletes to transfer schools once without punishment.

What is not included (yet) — any desire for a pay-for-play program.

 What would a union look like for players?

On April 25, 2014, football players at Northwestern made history by becoming the first collegiate athletes to vote on forming a union. However, the votes are impounded until Northwestern’s appeal to the NLRB is decided, which could take months or even years. The votes cast by Northwestern’s players will only be opened if the board sides with the players. Smart money says the 5-member, labor-friendly board will uphold Ohr’s decision that football players are employees. If the board upholds the decision, the mere right to vote on a union is a victory for Northwestern’s football players. It is likely by the time the case is ultimately decided, the players who voted will no longer be at Northwestern. But if the players voted against forming a union, they would still be considered employees even if the union movement at Northwestern would temporarily end. If the players voted for a union, the University would be forced to bargain with CAPA or force further appeals.

More importantly are the implications for the University at the NCAA. At this point, the union is not asking for a pay-for-play, but unions could be the first step down that road. Furthermore, if football players are treated as employees, they could be subject to tax on their scholarships.

What would a union mean for universities?

Most importantly, a union would mean Northwestern would have to negotiate with players and meet more of their demands. Northwestern strongly urged its students to vote against forming a union. Northwestern’s Vice President for University Relations Alan Cubbage issued a statement saying, “Northwestern believes strongly that our student-athletes are not employees, but students. Unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes.” Team officials see a union as transferring the players’ trust to a third party which may not have the players’ best interests in mind. They argue a union would create an “us versus them” mentality and create unnecessary tension for the team.

The NLRB ruling applies solely to private schools, only a handful of which (Stanford, USC, Notre Dame, Vanderbilt, Duke, Miami) have big-name athletic programs. The law currently exempts public schools from NLRB jurisdiction, but public universities should be concerned if state labor boards decide to follow the lead of NLRB. The push from Northwestern’s players alone may make colleges consider greater dialogue with players in regard to health, safety, and full-cost scholarships. Simply by filing, the players have made athletic departments across the country more concerned that their players be treated fairly.

If upheld, the ruling will pose interesting questions to universities. If scholarship football players are considered employees, are other university athletes also considered employees? Would students on a musical or academic scholarship be considered employees? Would this have any Title IX implications for gender equality? Will the presence of athletic unions at private schools make their programs more desirable and destroy the NCAA’s competitive balance?

Why is the NCAA opposed?

The NCAA has long insisted that players are “student-athletes” who are foremost students, which is strongly at odds with the notion that student-athletes are employees. NCAA officials are quick to point out that 99 percent of college athletes will never play professional sports.The NCAA has created a system which has helped millions go to college, and they do not want to see this system thrown away. A primary concern is that allowing unions is a first step toward greater benefits for athletes, including pay. In 2012, the NCAA reported $872 million in revenue. Many players see their lack of receiving any of this compensation as exploitation. Below is a clip from NCAA’s President Mark Emmert discussing the impact of unionization:

Would unions change college sports?

Unions may be a big first step toward long-term change, but allowing unions themselves will not revolutionize the college sports’ world. Athletes will still take the field every Saturday and the NCAA will still make billions. A union will allow players to negotiate benefits on their own behalf. The ruling would make football players employees of the university, not of the NCAA, so there would not be any direct impact on any NCAA rules.

Currently, the NCAA is fighting a slew of lawsuits which pose greater threats to its future. Jeffrey Kessler and Ed O’Bannon have each brought a significant lawsuit:

• Kessler alleges the NCAA and 5 conferences are engaged in price-fixing for capping the compensation of athletes at the value of a scholarship and thus, violating antitrust laws. The intent is to strike-down rules that prevent college athletes from receiving a share of NCAA revenue and greater compensation.
• The O’Bannon case seeks licensing revenue from the NCAA for football and basketball players’ names, image, and likeness. The case could mean paying players for their jersey sales and for their use in video games.
  

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Conclusion

Treating college athletes as employees means a fundamental shift in the negotiation rights provided to athletes. Whether or not the original NLRB ruling is upheld, universities and the NCAA will be forced to alter their own stance to ensure athletes do not feel that they are being exploited. Problems with college athletics will not disappear anytime soon, and major change is coming to the economic model of college sports.

Resources

Primary

College Athletes Players Association: Official website

Washington Law Review Association: The Myth of the Student-Athlete: The College Athlete as Employee

National Labor Relations Board: Decision in Northwestern University Athletes Case

Additional

SB Nation: Northwestern Players’ Union Votes are in: Now What?

CBS: Northwestern Players Start Union Movement in College Athletics

Washington Post: College Athletics Have Many Problems, But a Union is the Wrong Way to Try to Fix Them

Pittsburgh Post-Gazette: College Athletes Union Raises Tax, Discrimination Questions

ESPN: NU Players Cast Historic Vote

NU Game Changers: 10 Point Blueprint for Change

Slate: Northwestern Football Players Just Voted on a Union

NPR: Northwestern Players Cast Union Vote–But Results Will Have to Wait

USA Today: A Simple Guide to the Biggest Thing Happening in College Sports: Northwestern Football Union’s Fight

National College Players’ Assciation: Mission & Goals

Post Game: Deeper Look at Northwestern Football, NCAA Union Issue

Alexandra Stembaugh

Alexandra Stembaugh graduated from the University of Notre Dame studying Economics and English. She plans to go on to law school in the future. Her interests include economic policy, criminal justice, and political dramas. Contact Alexandra at staff@LawStreetMedia.com.

The post The Battle in College Sports: Northwestern Football and Unions appeared first on Law Street.

It’s a chilly November afternoon in Indiana. Simple, God-fearing folks from Fort Wayne to Evansville have gathered with friends and family to celebrate the football game happening in South Bend, just as they do every year. The game would give the winner a good shot at college football’s national championship, and give one team’s fans bragging rights throughout the country for at least a year. But this year there would be no bragging rights for either Notre Dame or USC fans because there would be no game. Hours before kickoff, Notre Dame quarterback Josef Steinbeck (a transfer from Michigan) convinced his team to strike over the team’s early curfew and average salaries. Notre Dame University, Steinbeck’s employer, was powerless because Steinbeck was protected by a big, powerful, union.

This Thayer-esque sports tragedy is exactly the type of yarn being spun by opponents of unions in college football, like United States Senator Lamar Alexander (R-TN) and the Wall Street Journal. These stories have the potential to both entertain and galvanize the casual fan into opposing collective bargaining for college football players, but are they cautionary tales or tall tales?

Generally, unionized workers are permitted to strike only for economic concessions or due to an unfair labor practice (ULP) committed by their employer.  If a union strikes for an economic concession that’s plainly covered by their collective bargaining agreement (CBA) (e.g. strike to compel an employer to raise minimum salaries higher than the CBA permits), a union risks committing a ULP itself, which could lead to fines, sanctions, or even decertification of the union. Unions also can’t strike unless they’ve given ten days notice to their employer, and they can’t strike at all if their CBA contains a no-strike provision. Rather than striking or hashing out issues via proletariat revolution, union complaints are usually either withdrawn or settled.

Still, work stoppages do happen (although apparently not in Canada). In sports though, it’s often not at the behest of the union.  A glimpse at work stoppages in professional sports shows that most are caused when owners refuse to permit the players to work (lockout) rather than the players refusing to play for the owners (strike). In baseball, strikes outnumber lockouts but mainly because the MLB’s perplexing antitrust-exemption prevents players from using alternate means to litigate their beef with management. In other sports, lockouts have typically arisen when CBAs between ownership and players have expired, and the two sides have not agreed upon a new contract. Since it takes two to tango, an unbiased observer would see owners just as responsible for sports stoppages as players are.

Even if the improbable did happen and unionized college players went on strike, would they deserve our resentment? The National College Players Association (NCPA) would be the presumptive union representing most college sports teams, and their demands are fairly modest requests regarding player safety, scholarship guarantees, and the ability to transfer. If a school reneged on one of these issues mid-season and still expected its football player to provide it with its multi-million dollar revenue stream, is the student the bad guy? Not in any story I’ve ever read.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Shaynedwyer via Wikipedia]

Andrew Blancato

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