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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The NCAA’s amateurism rule is rubbish. On its website, the college athletics governing body claims it has “adopted amateurism rules to ensure the students’ priority remains on obtaining a quality educational experience and that all of student-athletes are competing equitably.” The page goes on to list all the things student athletes are not allowed to do under the principle of amateurism, including:

1. Salaries for participating in athletics;
2. Contracts with professional teams;
3. Benefits from an agent or a prospective agent;
4. Agreement to be represented by an agent; and
5. Tryouts, practice, or competition with a professional team.

In the meantime, the University of Texas basketball program collected more than $165 million in revenue for the 2013-2014 season, according to the Office of Postsecondary Education. Forbes values its football program at a cool $139 million, while the NCAA as a whole made nearly $913 million for the fiscal year 2013.

If the NCAA is starting to sound like a cartel, that’s because it is. By definition, a cartel is an agreement between competing firms to fix prices. A long time ago, colleges got together and decided not to pay players, fixing the salaries of their student-athlete employees at zero for the benefit of NCAA and participating universities’ leadership.

So then, it becomes evident that the NCAA needs to get rid of its amateurism rule. Fortunately, the rule is already under assault in the court room.

In a March 2014 National Labor Relations Board decision, Regional Director Peter Sung Ohr ruled that a group of Northwestern University football players are eligible to form a union on the basis that players devote as many as 50 hours a week to football, and that scholarships, which can be terminated yea to year and require student athletes to adhere to certain guidelines, are a contract for compensation.

In an August 2014 California District Court decision, Judge Claudia Wilken ruled that “NCAA rules unreasonably restrain trade in the market for certain educational and athletic opportunities offered by NCAA Division I schools” in a case involving a former UCLA basketball star who claimed the NCAA and EA Sports violated his right to use his image for marketing purposes when his image was used in a video game without his consent and without compensation.

Nevertheless, there are numerous arguments against compensating student athletes.

Some argue that a vast majority of athletic programs at universities are losing money and need help from their basketball and football programs to stay afloat. Compensating student athletes, they contend, will force athletic departments across the country to cut programs.

Tough luck. We live in a capitalist society where businesses close every day because they fail to make a profit. If a university believes that maintaining these programs leads to more donations from alumni, fine, fund them through donations. But student athletes contributing to profitable programs should not be punished for the financial woes of their unprofitable counterparts.

Others argue that scholarships reasonably compensate student athletes.

No, they don’t. In a Drexel University and National College Players Association study, the average Division I college basketball player would earn $266,000 per year, and the average Division I football player would earn $114,000 per year, if players received 50 percent of the revenue earned by their respective programs, which is approximately the revenue sharing model of the NBA and NFL.

Still, others argue that high school athletes have the right to decide whether or not they want to accept a scholarship and be bound by NCAA regulations.

Well, the NBA enforces a 19-year age minimum for draftees, and the NFL requires its draftees to be three years removed from high school. With the emergence of European and Chinese leagues, some high school basketball stars have opted to spend their last years of ineligibility abroad. With no comparable foreign football leagues, football stars are out of luck.

There is yet another denomination of people who argue that the NFL’s three-year rule protects young athletes who are more susceptible to injuries such as concussions.

In most states, minors become legal adults at the age of 18, and the legal age of consent is 16. High school football players are well aware of the risks associated with playing the sport, and they should have the option to get paid millions of dollars to take on the higher risks of playing professionally with better athletes, or receive scholarships and develop their skills in a less physical college setting.

Consequently, the most sensible solution to the NCAA amateurism problem is for the NBA and NFL to eliminate their age requirements. Unfortunately, college athletics function as a phenomenal developmental league for professional leagues that professional franchises do not have to pay for.

So, as long as these age requirements are in place, amateurism in college athletics is dead. The NCAA needs to stop pretending that its student athletes are students first, athletes second, and open up its leagues to all the intricacies of the free market.

Doing so may involve sports agents that specialize in college athletes, or a free agency period where eligible players can transfer to other universities. The market will invariably take many twists and turns before it settles into a final model, but it will certainly be better than a system in which a cartel blatantly exploits the services of helpless college athletes.

Hyunjae Ham

Hyunjae Ham is a member of the University of Maryland Class of 2015 and a Law Street Media Fellow for the Summer of 2015. Contact Hyunjae at staff@LawStreetMedia.com.

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