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 Rather than striking or hashing out issues via proletariat revolution, union complaints are usually either withdrawn or settled.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

The post The Fable of the College Football Strike appeared first on Law Street.

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

The post How Will Northwestern Stop its Football Team From Unionizing Now? appeared first on Law Street.

“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

The post Football Local 60208? Why College Athletes May Win Their Fight to Unionize appeared first on Law Street.