Column: Unionization of College AthletesApril 7, 2014

Column: Unionization of College AthletesBy now, most Americans are aware of the recent decision to grant Northwestern University football players the right to unionize. The ruling, handed down by National Labor Relations Board (NLRB) director Peter Sung Ohr, has raised the ire – and fear – of the NCAA and college administrators who have issued confusing and sometimes misleading statements concerning the meaning and impact of the decision on college athletics. Let’s take a look at some of the major issues raised by Ohr’s decision.

How did Ohr reach his decision?

In order to rule for the players, Ohr had to find that they were employees of the university. By law, an "employee" is a person who [1] under contract, [2] performs services for another, [3] subject to that person’s control, [4] in return for payment.

To Ohr, the letter of intent signed by the players is the [1] contract, the hours of practice and play are the [2] services, the rules and regulations are the [3] control, and the scholarship is the [4] payment. The evidence showed that players devote between 40 and 50 hours per week during the season, and 15-20 hours per week during the offseason on football activities.

Ohr also found that virtually every aspect of a player’s life is controlled by the University. They are required to abide by rules – many of them petty in nature - imposed by coaches and administrators who could “fire” them for any violation. They lack many of the freedoms and rights taken for granted by other students, even those who receive scholarships other than for athletics. Northwestern also prioritized football over academics. Players are not permitted to take classes that conflict with football practice and scholarship players cannot leave practice early to make a class. Their schedules are dictated by the needs of the football team.

What happens from here?

Ohr’s decision is merely one step in what is certain to be a lengthy legal and procedural process. Northwestern has appealed to the five-person NLRB in Washington. From there, either party can – and certainly will – appeal the Board’s decision to the federal Court of Appeals. The loser at that stage could ask the Supreme Court to accept the case. If it refuses, the decision of the Court of Appeals will stand.

Meanwhile, there is an election scheduled for later this month which will allow the Northwestern football team members to vote yea or nay on union representation. The vote could be held in abeyance or it could go forward and the results impounded pending the outcome of the appeals.

Are other schools affected by this decision?

The decision only applies to Northwestern football players, but players at other private schools, such as Notre Dame, could also begin the process to unionize. State schools, like Alabama, are not subject to NLRB jurisdiction and are therefore unaffected directly by the decision. However, the case could impact them as well. Being represented by a union could influence a recruit’s decision on where to attend college, giving unionized programs an advantage over non-unionized ones.

Does the decision apply to all sports, or just revenue-generating sports?

In theory, the decision could apply to all sports, but the reality is the revenue-generating sports – primarily football and men’s basketball – are most likely the only ones that meet all the requirements of the employee-employer test outlined above.

Are the Northwestern players looking to get paid?

No. The players, assisted by the United Steelworkers Union, are seeking benefits in the form of workers compensation insurance, disability payments, better health care and more control over their schedules. Whether that might change in the future remains to be seen. There are other suits against the NCAA seeking compensation for student-athletes that should be of more immediate concern than the Northwestern case.

How does the decision impact Title IX?

The Title IX implications are unclear. On one hand, if Northwestern ends up providing additional benefits to its football players, some will argue that constitutes preferential treatment and a violation of the landmark statute. On the other hand, if the football players are employees, rather than students, any benefits they receive would not be covered by Title IX.

While there are a number of uncertainties related to the Northwestern case, one thing is certain: College athletics as we know it is about to change, voluntarily or otherwise.