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Mar
2014
27

Wildcats Strike: Regional NLRB Director Grants Northwestern Football Team Right to Organize

Northwestern

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In a decision that could alter the role of ‘student-athletes,’ the National Labor Relations Board’s regional director in Chicago ruled that Northwestern football players are employees of the university and have the right to organize with a union and collectively bargain.  

In a 24-page decision, NLRB regional director Peter Ohr paved the way for the work of the College Athletes Players Association (CAPA).  The ruling will now make its way to the full, national NLRB in Washington.  

On page 18 of the decision, Peter Ohr explained how time commitments for football — when compared to academic time commitments — make college athletes employees more than students.  In being compensated (with a scholarship) for a full week’s work, Ohr argues that the athletes should have rights afforded to university employees:

• Players spend 50 to 60 hours a week on football during a training camp before school starts.
• They also dedicate 40 to 50 hours per week on football during the four-month season. “Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies,” Ohr writes. They spend 20 hours per week in class and more doing homework, sure, but they also work on football outside of official practice time. Ohr’s equation also doesn’t seem to take into account the offseason. But, he writes, it “cannot be said” that they “spend only a limited number of hours performing their athletic duties.”

Former Duke basketball star and current ESPN analyst Jay Bilas explained the decision’s potential effect on the NCAA’s status quo, telling The New York Times, “It’s another brick being taken out of the castle the NCAA has constructed.  It’s not going to stand forever and we’re getting closer and closer to it tumbling.”

While the ruling applies specifically to players at Northwestern University, the decision could set a precedent for other football programs.  Former Northwestern quarterback and de facto face of the movement, Kain Colter, had worked with the United Steelworkers and CAPA to bring the suit before the NLRB.  Last spring he explained the reasoning behind seeking proper workplace representation:

The action we’re taking isn’t because of any mistreatment by Northwestern. We love Northwestern. The school is just playing by the rules of their governing body, the NCAA. We’re interested in trying to help all players—at USC, Stanford, Oklahoma State, everywhere. It’s about protecting them and future generations to come. Right now the NCAA is like a dictatorship. No one represents us in negotiations. The only way things are going to change is if players have a union.

The decision is unpopular among universities and the anti-union far right.  Former University of Tennessee President and Presidential candidate Lamar Alexander is among its detractors:

Imagine a university’s basketball players striking before a Sweet Sixteen game demanding shorter practices, bigger dorm rooms, better food and no classes before 11 a.m.,” Alexander said, showing that he’s lost track of college students’ priorities. “This is an absurd decision that will destroy intercollegiate athletics as we know it.”

Alexander’s view of the situation is as biased as it is simplistic.  For the players, who put their futures on the line in order to make their university millions in heaping profits, unionization is a way to ensure that their labor is fairly rewarded.  Safety and expectations of a proper return on investment with respect to graduation are at the forefront of the struggle to change the system.  

Labor writer Kenneth Quinnell gives eight excellent reasons why college football players need a union:

1. Sports can kill you: There are many stories over the years of college and high school football players dying because of on-field or practice-related problems, particularly concussions, like the one that killed Frostburg State University player Derek Sheely last year. Many players don’t think the NCAA does enough to protect the safety of players, and the NCAA is on record saying that it has no legal obligation to protect players from head injuries. The NCPA has developed a safety plan it wants the NCAA to adopt.

2. The costs of a sports-related injury are not covered by the college: The NCAA doesn’t require schools to cover the costs that athletes incur when they are injured in relation to their sport. These injuries have left players with debts that can exceed $10,000, with many of those injuries reducing a player’s ability to earn money to pay for those costs.

3. An injury can end a player’s education: If a player gets injured, even through no fault of their own, they can be dropped by the college. Many colleges do the right thing and let them continue going to school, but it isn’t required.

4. Only half of football and men’s basketball players graduate: One of the key arguments against increased compensation for players is that they’re “getting a free education.” But an incomplete education doesn’t do a whole lot to expand the career options of the vast majority of players who don’t play professional sports. If schools don’t prioritize graduation for these players, are they really providing them with a free education? Or are they exploiting them for their talent and then casting them aside?

5. Athletic scholarships don’t cover all of a player’s costs: A recent study has shown that, on average, a college athlete’s scholarship leaves them about $3,200 short of the costs of attending college each year. Players are not allowed to receive pay for work to cover that cost.

6. Players who fail to live up to expectations can be cast aside: When a player takes a chance on signing to play with a school and they don’t live up to that school’s expectations, that player can lose their scholarship and lose their opportunity at finishing their education. The NCPA is calling for these players to be given given non-athletic scholarships so they can finish their degrees, since they sacrificed other opportunities by signing with the school that no longer wants them.

7. Colleges make billions off of players, who get a tiny piece of that pie: The power conferences in football and men’s basketball make an estimated $5.15 billion annually off of the players. Beyond scholarships, players get no compensation, despite the fact that schools not only make money off of the players for the games and TV contracts, but also off of merchandising, particularly in the form of apparel and video games (although there has been some limitation of this type of revenue in recent years).

8. Players don’t control their own destiny: If a player thinks they could be better served or have more opportunity at another school, they don’t have a ton of options. Most transfers require players to sit out a year and to lose a year of eligibility, unless they transfer to a lower division school that offers less visibility and can limit their future prospects in their sport.

Ohr’s decision asserts that college football players do in fact work for pay, although not in the traditional employer/employee arrangement.  AFL-CIO President Richard Trumka attempted to connect the organizing victory to other recent labor struggles:

The lesson that strength comes from standing together is one Colter has learned fulfilling his 60-hour-plus weeks as a football player, and it is true for all workers, whether they teach school, build Volkswagens in Chattanooga, [Tenn.,] or serve as home health care workers.

Sports Illustrated conducted an interview with legal analyst Michael McCann which addresses some of the finer details of how the decision, if upheld, will affect labor law.  McCann explains what he views as the next step for the Northwestern players:

Once we know what the bargaining unit is, the NLRB then has to confirm that Kain Colter has at least 30 percent of their bargaining unit supports entering into bargaining. Then the union would notify Northwestern that it would like to enter into negotiations over the contracts of these students-athletes, because they are employees. And this is an understated point: These players are not only going to be owed salary. They’re going to be owed health benefits, and potentially pension or retirement. They may be entitled to other forms of disability insurance or worker’s compensation. It could become a very expensive proposition for Northwestern. I’m sure Northwestern will continue to have football, but some schools may have to really rethink how much money it costs to have big-time sports.

Today’s decision by regional director Pete Sung Oh will almost certainly be appealed by Northwestern. Any decision by a regional director can be appealed to the NLRB in D.C. Given the novelty of this issue, and given the stakes, an appeal is virtually certain. Even if an appeal fails and the NLRB agrees with Sung Oh, Northwestern can file a lawsuit and hope to get a federal court of appeals to overrule the NLRB. But in order to appeal to a court, Northwestern will have to refuse to bargain with its own students, which could be awkward.

Of course, it is important to note that the NLRB has been known to reverse itself on whether certain types of workers can unionize, especially after a new president appoints NLRB board members of different ideologies. For instance, it reversed itself on whether graduate students can unionize. This means it is possible that a future composition of NLRB board members may view student-athletes differently and reverse course. With that in mind, expect student-athletes at other schools to quickly seek unionization before there is a risk of a new policy.

What is certain no matter the NLRB’s final decision regarding Northwestern is that the NCAA and its policies are at a crossroads. Understanding of the system’s inherent conflicts is becoming widespread.  Two other related, major cases are currently in the legal system: Former UCLA star Ed O’Bannon’s lawsuit which alleges that former NCAA athletes should be compensated for their likenesses in video games and broadcasts and a case filed last week by antitrust lawyer Jeffrey Kessler which claims the NCAA and its “power conferences” have made billions of dollars off of players by restraining their compensation.  

The eventual workplace rise of the student-athlete should come as no surprise. After all, Jalen Rose and Michigan’s “Fab Five” were talking about being exploited some 23 years ago, in 1991, as witnessed in the glorious ESPN “30 for 30” documentary “(below):

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