NLRB Agrees to Hear Northwestern Appeal; Football Players Vote on Forming Union

NW footballDo college athletes qualify as employees? The nature of labor relations in this country could be seriously altered with a “yes” answer. And the National Labor Relations Board has agreed to consider the question. Last Thursday, April 24, the NLRB announced it would review an appeal by Northwestern University of a ruling by the board’s Chicago regional office that NCAA Division I men’s football and basketball scholarship athletes at private schools, as “employees,” may unionize. A major force in this case, Kain Colter, a recent Northwestern quarterback, argues that since college athletes are pro all but in name, they deserve collective bargaining rights. In its appeal, filed on April 9, the university countered, and with good reason, that the decision ignored key facts. Meanwhile, the Northwestern football team voted Friday on whether to unionize; the results won’t be known for a while.

The case was long in the making. Northwestern University is merely the immediate context. It’s hardly a novel observation that college sports, especially football and basketball, are big business. The nearly 125 schools in the National Collegiate Athletic Association (NCAA) Football Bowl Subdivision earned a combined $1.3 billion profit on $3.2 billion in revenue in the fiscal year ending June 30, 2013. Multiyear broadcast contracts in force involving the NCAA and its five most powerful conferences guarantee a combined revenue stream in excess of $31 billion – that’s apart from ticket sales, licensed products and other revenue sources. Head coaches are negotiating record compensation packages. The average salary for major conference football coaches in 2013 was $1.64 million, an increase of more than 70 percent since 2006. The average salary for major conference basketball coaches whose teams took part in the 2012 NCAA March Madness tournament is $2.25 million, a jump of 20 percent over the average salary of coaches whose teams took part in the 2010 tournament. That’s a whole lot of money, no matter how one slices it.

A number of college athletes and their allies see this as a raw deal. They claim that because sports is a prime revenue-generating activity for higher education institutions, sports team members should be able to reap ample rewards. Such critics note that athletic scholarships don’t defray all costs of higher education, and in any event, can be yanked at the university’s discretion. What’s more, sports participation makes demands on an athlete’s time that diverts his attention away from academic studies. Since the spirit of amateurism is mere rhetoric, they say, student-athletes should have the right to negotiate salaries, health benefits, and other terms and conditions. Former UCLA linebacker Ramogi Huma is foremost among the people making such points. He co-founded and runs a group known as the College Athletes Players Association (CAPA), which amounts to a union in nascent form. It now claims about 17,000 NCAA Division I athletes across a wide range of sports. Huma explained in January the main function of the group: “This is about finally giving college athletes a seat at the table. Athletes deserve an equal voice when it comes to their physical, academic and financial protections.”

Huma has attracted a number of vocal supporters, none so significant as Kain Colter, quarterback for the Northwestern Wildcats during the 2010-13 football seasons. Colter, a co-founder and board member of CAPA, believes athletes in major sports programs are treated as serfs. “The system resembles a dictatorship where the NCAA mandates rules and regulations that players abide by without any input or negotiation,” he said on January 28 during a media conference call at the Hyatt Regency Hotel in downtown Chicago. He and Huma organized the event to announce  their filing of a petition with the National Labor Relations Board Chicago regional office to seek the right of NCAA Division I football or basketball scholarship athletes at private institutions to form a union. Two months later, on March 26, NLRB Regional Director Peter Sung Ohr, to the surprise of many observers, ruled that they did have legal standing as a potential collective bargaining unit. The player-plaintiffs, he wrote, “fall squarely within the [National Labor Relations] Act’s broad definition of ‘employee’ when one considers the common law definition of ‘employee.'”

CAPA, and the group from which it spun off, the National Collegiate Players Association, has cultivated allies in the world of organized labor, specifically, the United Steelworkers and the National Football League Players Association. The Steelworkers union, which represents more than just steelworkers, knows an organizing bonanza when it sees one. Ramogi Huma, in fact, had approached the union some time ago, eventually winning the support of President Leo Gerard. “When Ramogi first reached out to us years ago, we were like an overwhelming part of the population in that we figured athletes were lucky because they’re getting an education,” Gerard remarked this January. “But then we looked into it and realized it’s a myth. Many don’t get a true education and their scholarships aren’t guaranteed.” As for the NFL Players Association, its Board of Player Representatives, also in January, passed a resolution that read: “Resolved, that the NFLPA pledges its support to the National Collegiate Players Association and its pursuit of basic rights and protections for future NFLPA members.” If college football players eventually do unionize, pro counterparts will give them full support. It’s in their interests.

Campus, conference and NCAA officials, by contrast, are less than enamored with this development. Big 12 Conference Commissioner Bob Bowlsby said last year: “I just don’t think we ever want to go down the path of creating an employer-employee relationship with student-athletes. This is higher education, and it always ought to be higher education.” And early this year, NCAA Chief Legal Officer Donald Remy similarly stated, “This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education.”

The administration of the Evanston, Ill.-based Northwestern University, ground zero for the unionization campaign, has been especially barbed in its criticism. Justifying its appeal of April 9, the university issued a statement accusing Chicago NLRB Regional Director Peter Sung Ohr of loading the dice in his March 26 ruling. Ohr, read the statement, relied almost exclusively on the testimony of Kain Colter, while heavily discounting testimony by three other football players who stated that academics were their top priority. The Northwestern brief stated, “Based on the testimony of a single player, the Regional Director described Northwestern’s football program in a way that is unrecognizable from the evidence actually presented at the hearing.” The university, one of the top-ranked private institutions in the nation, pointed to its 97 percent graduation rate among its football players. “The remarkable graduation rate,” the brief noted, “is not something that should merely ‘be noted,’ in passing, as the Regional Director did, but instead demonstrates the emphasis that Northwestern places on the academic success of its student-athletes.” The decision last Thursday, April 24, by the National Labor Relations Board thus came as a welcome piece of news to the university. “Northwestern believes strongly that our student-athletes are students first and foremost, not employees,” said Alan Cubbage, vice president for university relations. “We believe the recent ruling by the NLRB regional director was flawed and overlooked or ignored key evidence that Northwestern presented supporting that position.”

The following day, April 25, saw another defining event: a scheduled secret ballot vote by members of the Northwestern football team on whether to form a union. All 76 scholarship players were eligible to cast a ballot. A victory for unionization would require only a simple majority. CAPA’s Huma had stated the previous day in an e-mail: “Northwestern University has put tremendous pressure on the team to vote against forming a union, but we remain hopeful that the majority of players will feel free to follow their beliefs and vote Yes.” He added in a statement on April 25: “Today’s vote clearly demonstrates that amateurism is a myth and that college athletes are employees. The NCAA cannot vacate this moment in history and its implications for the future.” The votes won’t be counted until after the NLRB completes its review of the “substantive issues” raised by Ohr’s prior ruling, something that could take months. The NLRB will not count the votes if it overturns the regional office decision.

Huma, Colter and other pro-union activists are confident of victory. But victory is hardly a given. One Northwestern player, who preferred to remain anonymous for fear of repercussions, told the Chicago Tribune after the balloting that he was 80 percent certain the team had voted against unionization, and that turnout was high. Widely respected Northwestern football head coach Pat Fitzgerald, who doesn’t have to fear repercussion, has tried to convey the view that unionization likely would undermine team loyalty. “Understand that by voting to have a union, you would be transferring your trust from those you know – me, your coaches and the administrators here – to what you don’t know – a third party who may or may not have the team’s best interests in mind,” Fitzgerald indicated in an e-mail to his players.

Whether the pro-union forces can win is a separate issue from whether they should win. And the case against unionization, as Union Corruption Update argued at the beginning of this month, is far stronger than the case for it. The article laid out seven reasons why unionization of college sports is a bad idea: 1) it would enable a transformation of campus athletes into professional ones; 2) it would create bidding wars among top-tier NCAA universities for the best players, and thus undermine athlete institutional loyalty; 3) it would turn colleges and universities into pro sports enterprises all but in name; 4) it would force players to devote even less time to their studies in order to justify their salaries; 5) it eventually would induce public as well as private colleges and universities into accepting a players union on their campuses; 6) it would accelerate the tendency of campus athletic departments to cancel “minor” men’s sports programs, such as swimming and tennis, so as to remain in compliance with federal Title IX sports gender equity mandates; and 7) it would create an irreversible psychological shift in the mission of higher education. Regardless of how the NLRB rules, each of these objections would remain valid.

This is not even a complete listing of objections. There are two additional and unavoidable considerations. First, forcing colleges and universities to pay their athletes large salary and benefit packages in selected sports would raise tuition and fees for everyone else. As George Leef, research director for the Raleigh, N.C.-based John William Pope Center for Higher Education Policy, explained in a recent column for Forbes magazine, the situation has a built-in zero-sum nature: “Whatever marginal gains collective bargaining might bring for the players must come at the expense of other parts of the university community.” Second, it is a fact that blacks are disproportionately represented in college football and basketball relative to other college sports. A large shift of athletic department funds to football and basketball programs from less heralded sports programs is likely to create enormous (if unspoken) resentment among many white athletes.

Some supporters of unionization have put forth the argument that unionization boosts team morale. “The typical football player, what they want is solidarity, not divisiveness,” argues Paul Haagen, a specialist in sports contract law at Duke University Law School. “They have no option as to a non-divisive outcome. That’s got to make it hard.” But this is a misleading way to frame the issue. A campaign to unionize a nonunion workplace, by its very nature, is divisive. It pits certain employees against others, especially during a card check. This is as much true in the context of competitive sports as anywhere else. Players who are reluctant to sign a union pledge card aren’t going to bask in a glow of team unity because they were outvoted by their teammates. If anything, they’re going to resent being corralled into joining, and paying dues, to a union. And if a team votes against union representation, it’s hard to see morale undermined as a result. Those who seek professional-sized financial packages either can turn pro or (assuming NLRB recognition of college sports unions) transfer to a unionized institution. In sports, one builds team spirit through the pursuit of victory.

When all else fails, union advocates play the hypocrisy card. They denounce campus administrators for reciting platitudes about higher learning but treating sports, especially football and basketball, as the measure of their institution. If jocks labor to achieve dominant status on campus, the argument goes, then they ought to be compensated amply for their efforts. After all, a lot of other people, from TV networks to manufacturers of licensed trademark products, are getting rich off college sports. On the surface, the argument makes sense. But it carries a strong whiff of corruption. Treating college athletes as professionals only would heighten their high-caste status setting them apart from other students. Financial windfalls, in the end, are for the years after graduation. 

Sports are both fun and necessary. But the primary purpose of college remains getting an education. Put bluntly, if someone attends college without any intention of taking academics seriously, he or she shouldn’t be in college. Being an athlete shouldn’t provide an exemption to this rule. Our current set of arrangements, despite all of its nudge-and-wink hypocrisy, remains far more workable than turning our college campuses into battlegrounds for union organizing, bargaining and possible strikes.


NLRB Forces Unionism on NCAA Sports