The relationship between student athletes and the schools for which they play has operated increasingly in a gray area in recent years. Student athletes are technically students, but in many ways–particularly when it comes to the money they generate for their schools–their relationships to the colleges and universities are significantly different from non-student athletes. In recognition of the ambiguity of this gray area, and the desire to contribute to discussions about their program, football players at Northwestern University recently tried to unionize. After a long back-and-forth, their application was effectively turned down by the National Labor Relations Board (NLRB), meaning the players cannot unionize.

The argument made by the students looking to unionize was based on something that is pretty well known for permeating college sports–money. Universities can make a hefty chunk of change from having strong college sports teams, particularly football. According to the Department of Education, college football revenue generated by Division 1 teams topped $3.4 billion in 2013. For comparison, that number wasn’t too far from the $3.6 billion in revenue generated by the National Hockey League (NHL) in 2013.

But a team is only as good as its players, and while players do receive plenty from the arrangement in the form of publicity, experience, and sometimes a straight shot to the big leagues, the Northwestern football players were arguing that they deserve a more prominent seat at the table. Kain Colter, a former co-captain of Northwestern’s team, explained that being a football player at the school was essentially a job. CNN summed his testimony at the NLRB hearing to that effect:

He said football was dominating his college experience, consuming up to 60 hours a week during the season and up to 20 hours the rest of the year, he said. He and his teammates never got summer and winter breaks, couldn’t schedule certain classes and were required to adhere to dozens of rules or risk losing their scholarships.

As a result of that environment, Colter and the other Northwestern players who voted to unionize, as well as players from other schools involved in the movement, argued that they would like to receive benefits like free tuition or more extensive medical coverage.

However, that particular argument wasn’t convincing for the NLRB board, which denied to take jurisdiction over the application to unionize. By doing so, the board essentially stopped the students’ ability to join or create a union. Northwestern University brought up that its student-athletes are students first, not employees, an important distinction if the players were to unionize. Additionally, officials from the school expressed confusion as to why Northwestern was the focus of this push, given that Northwestern isn’t generally regarded as a football powerhouse. Additionally, a big concern for the board appeared to be that it would create an unfair advantage for students who attend private universities, because the ruling wouldn’t apply to students at public universities.

The Northwestern players’ attempts to form a union have been pretty much quashed, but that doesn’t mean the conversation is over. Players at public universities could try their luck with various state institutions. Additionally some of the things that the players are fighting for, like improved medical care, are consistent with broader discussions in the football community and the NFL about player safety. As the line between student-athlete and athlete continue to blur, and college football promises to continuing growing, these are essential issues that schools will have to contend with.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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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.

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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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For those of us who follow labor law, sports law, or both, March 26, 2014 was a pretty exciting day. Peter Ohr, Regional Director of the National Labor Relations Board (NLRB) for Chicago, held that Northwestern football players are employees under federal law and would be permitted to hold an election in a bid for union representation. Ohr’s 24-page decision has evoked mixed feelings from labor experts, but most consider the decision to be damaging to opponents of unions in college sports.

While the players might have won the first battle, the war for unions in college football has only just begun. As I mentioned in my original post on this controversial topic, the football team is unlikely to actually have a collective bargaining agreement in place for a couple years. And well before that happens, Northwestern University and some other characters will try to ensure a union delegation never steps foot on Ryan Field in Evanston, Illinois. Here are three tactics that they may use to block unionization:

1. The NLRB Appeal Process: Shortly after Ohr released his decision, Northwestern indicated that they would file an appeal. Appealing a regional NLRB ruling first requires filing a request to review with the National Office of the NLRB in Washington. A request to review is essentially an appellate brief requesting the NLRB to revise the decision of the regional office, usually via remand or reversal (an example can be found here). In Northwestern’s case, the request to review must be filed with the NLRB by April 9, 2014. If the request is granted, the NLRB’s judiciary panel (Board) will conduct a hearing to decide whether Ohr’s ruling was made in error, or whether it will be upheld.

2. Contesting the Election Process: Even if the Board affirms Ohr’s decision, the football team isn’t completely in the clear. The team is to vote on union representation on April 25, 2014, at which point all scholarship athletes participating in team activities will be permitted to vote. If a majority is not reached, the players have to wait one year to be eligible to cast ballots again. If a majority is reached but the team has not formed a collective bargaining unit by the time their eldest voters graduate, Northwestern may file an objection to the election in the form of an unfair labor practice (ULP). The ULP would allege that the deciding votes in the election aren’t eligible for union representation, and therefore a new vote would be required.

3. Congressional Action: Last Wednesday, former Northwestern quarterback Kain Colter and company met with Congressional leaders to discuss their campaign to unionize. Many believe the Wildcats’ trip was intended to drum up support in case Congress votes to enact federal law blocking University students from forming unions. That type of Congressional action is just hypothetical at this point, but also quite plausible. Some politicians have already expressed their displeasure with Ohr’s decision, and most forecasters believe the number of union opponents in Washington will only grow after the midterm elections. Considering the stakes and opponents involved, I’m sure Kain Colter would like as many teammates as possible for the upcoming fight.

Andrew Blancato

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“School’s done for me — I’m here to concentrate on football.”

Matt Leinart declared these words in August 2005 on the eve of his final season as quarterback for the University of Southern California’s football team.  The quote was part of an Associated Press article on Matt Leinart’s class schedule for the upcoming fall — a schedule which consisted solely of ballroom dancing. The one-page piece, picked up by ESPN, might have unfairly portrayed student-athletes as having cupcake course loads. But it also confirmed what everyone outside of the NCAA front office already knew: NCAA football players are treated as football players first, and students second.

More than two thousand miles away in Chicago, Ill., Northwestern University football players have taken formal steps to recognize this fact by having a petition filled on their behalf with the National Labor Relations Board (NLRB). In other words, college football players are trying to unionize.  If successful, the first ever college players union would be called the College Athletes Players Association (CAPA), and would focus on scholarships, transfer rules, and increasing player safety rather than require that players receive specific compensation (find out more here).

Before CAPA becomes an official union of college athletes, NCAA athletes may have to convince the NLRB they qualify as “employees” under Federal law.  At first glance, precedent would appear to favor the NCAA on this issue.  In 2004, the NLRB’s judiciary panel (Board) found that Brown University graduate teaching assistants were not employees, and therefore not capable of forming a protected union.  Important to the Board’s decision however were the findings that:

1. The role of the graduate assistant was integral to the education of the graduate student; and,
2. The relationship between the graduate assistant and Brown was primarily educational.

The NCAA is likely to recycle the same argument against college athletes, but it’s not likely to go as well. Is the role of the football player integral to the education of the football player? Doubtful. When the NLRB decided this issue in the Brown case they relied largely on the fact that graduate assistants “must first be enrolled at Brown to receive a TA, RA, or proctorship.” Meanwhile, most college football players are recruited as minors and offered athletic scholarships prior to high school graduation. Those athletes most similar to the example of an RA or TA in the case of college football would be walk-ons, and well, not all athletes are Rudy Ruettigers.

Is the relationship between the football player and their college primarily educational? Please.  A 2008 NCAA survey among college football players indicated they spent an average of 45 hours per week on their sport. Doesn’t seem to leave a ton of room for studying, does it?  Oh and let us not forget about the bags of money that are thrown around. Although maybe colleges make hundreds of millions from Gabriel the economics TA? Who knows!

Whatever the outcome may be regarding college football players’ right to unionize and their status as employees, we may not know the answer for years.  But clearly, the NCAA is going to have difficulty dancing around the issue.

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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 [David X. O’Neil via Flickr]

Andrew Blancato

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