College Football Unionization Decision Opens a Can of Worms
As long as most major football schools are state universities, the question of player unionization will likely be decided on political rather than strictly legal grounds.
A National Labor Relations Board official has given the green light to Northwestern University football players to form a union. The March 26 decision by the NLRB's Chicago regional director, Peter Sung Ohr, held that scholarship football players are "employees" for purposes of federal labor law. Ohr rejected the longstanding view of Northwestern and the National Collegiate Athletic Association that players are "student-athletes" rather than employees. While Ohr's decision is hardly the final word on this issue, it does accelerate the legal and political battle against the NCAA and its century-old amateurism rules.
Is Football Academic?
Kain Colter played quarterback at Northwestern from 2010 thru 2013. In January, he joined with Ramogi Huma, a former UCLA linebacker and longtime player-rights activist, to form the College Athletic Players Association (CAPA). Backed by the United Steelworkers, CAPA petitioned the NLRB in Chicago for recognition as a collective bargaining unit representing all current Northwestern football players.
In its brief to the NLRB, Northwestern argued its football players had a "predominantly academic rather than an economic relationship with the University," and it was therefore inappropriate to classify them as employees. The scholarships players received were nothing more than financial aid designed to fund their education, "not compensation for playing football."
Northwestern relied heavily on a controversial 2004 NLRB decision refusing to recognize graduate teaching and research assistants at Brown University as employees for purposes of forming a union. In that case, the NLRB said the relationship between graduate students and the university was primarily educational, not economic, and that "the student-teacher relationship is not at all analogous to the employer-employee relationship." Ultimately, the Board concluded that any financial stipend paid to graduate students constituted a form of financial aid rather than compensation for employment.
CAPA replied the Brown University decision was not applicable here. "Football is not part of Northwestern's academic program," CAPA said in its own brief to the NLRB, noting that unlike graduate students, players "receive no academic credit for their services to the football program." CAPA urged the NLRB to adopt the common-law definition of employee, which is any "person who works for another in return for financial or other compensation."
Director Ohr agreed with CAPA. Ohr credited former quarterback Colter's testimony explaining in great detail the 40 to 50 hour weeks Northwestern players spent purely on football. Ohr added that coaches "have control over nearly every aspect of the players' private lives," including restrictions where they live, when they eat, and even what they say on social media. And while players are students who must meet certain academic requirements, their recruitment and scholarship depend on Northwestern head coach Pat Fitzgerald, who is not a faculty member. More to the point, Ohr found "the players' football-related duties are unrelated to their academic studies," which means the Brown University decision does not apply. Ohr therefore concluded that football scholarships are not a form of financial aid, but compensation for services rendered to the university. Consequently, Ohr also held that non-scholarship "walk-on" players were not employees because they did not receive compensation for their football services.
The Legal Road Ahead
Despite Ohr's ringing endorsement, the college players union remains a theory. In the short term, Northwestern will appeal Ohr's finding that players are employees to the five-member NLRB in Washington. If the NLRB upholds the decision, which I suspect it will, CAPA will then conduct a union election among current scholarship players. Assuming the election favors unionization, Northwestern may still refuse to recognize the labor organization. This means a return to the NLRB, which would issue an unfair labor practices order against the university. Northwestern would then appeal that decision to either the U.S. 7th Circuit Court of Appeals in Chicago or the D.C. Circuit Court of Appeals. Whoever loses that round could then ask the U.S. Supreme Court to review the case. By the time this all plays out, it's likely all current Northwestern players will have graduated and moved on with their lives.
And even if CAPA prevails at every stage, the precedent set would only apply to the 17 private schools in the NCAA's Football Bowl Subdivision. The remaining 100 or so schools are public universities, which are subject to each individual state's laws regarding unionization of public employees. In other words, good luck trying to form a players union in states like Alabama.
The Political Road Ahead
While Ohr's decision makes sense on an intuitive level—players are paid to perform a service and are therefore employees—it leads to more questions than answers. For example, if players are employees, do their scholarships now constitute taxable income? Can athletic departments, many of which are organized as non-profit corporations designed to promote amateur athletics, continue to accept tax-deductible donations from alumni? And will other labor laws, including overtime and worker's compensation, now apply to football players?
For now, NCAA critics seem content to put those questions off for another day. Senate Majority Leader Harry Reid, speaking with the Washington Post's Dan Steinberg, praised Ohr's decision, saying, "Of course [players] should be able to organize." Reid blasted the NCAA's "unpardonable" treatment of athletes and added, "The NCAA, of course, for a long, long time has been an organization that only cares about making money."
That money, however, doesn't simply line the pockets of NCAA officials. Much of the revenue generated by college football goes to subsidize a plethora of non-revenue sports—including men's soccer, which Reid's son played at the University of Virginia, according to Steinberg—and comply with Title IX's gender-equity requirements. Northwestern, a private school without the taxpayer resources of public schools, noted it spends about $12.7 million annually to subsidize its athletic department's non-revenue offerings.
The problem for union organizers is that the non-revenue athletes (and their families) greatly outnumber the football and men's basketball players. And the revenue-sport athletes are only a microscopic fraction of the total number of students paying tuition—and, more often than not, carrying enormous student loan debt. In the eyes of the majority, the football players already receive adequate compensation—if not special privileges—through their athletic scholarships. These folks will not be receptive to a unionization movement that threatens to disturb the status quo.
That may be unfair to the football players. I agree with Harry Reid that they have every right to organize and seek improvement in their working conditions. But as long as the majority of major football schools are state-run universities, the question of player unionization will likely be decided on political rather than strictly legal grounds. After all, Congress writes the labor laws. If the Northwestern decision ultimately stands, the NCAA might simply ask legislators to exempt its athletes from the definition of "employee" under federal labor law. And despite his statements now, even a pro-union Democrat like Harry Reid may be receptive to such arguments if it means preserving the larger system of state-subsidized, non-revenue athletics.
