College Athletes Can Form A Union: What’s Next?

The regional National Labor Relations Board in Chicago issued a stunning decision Wednesday, granting employee status and unionization rights to college football players at Northwestern University (PDF of decision here).  The decision will almost certainly be appealed to the national NLRB in Washington, D.C., and from there can move over into the federal appellate courts and ultimately the Supreme Court.  While we won’t have a final resolution to this issue anytime soon, the decision issued today was significant and will have immediate impact.

Remember, we’re less than three months away from a trial in the O’Bannon v. NCAA case which has been in the courts since 2009.  A judgment against the NCAA there would no longer allow it to profit off of student-athlete (or should I now call them employee-athlete-students?) images and likeness without compensation.

We also had a new case filed just this month directly targeting the cap on scholarship amounts, demanding that the free market determine what a school may offer a prospective student-athlete.

In January, the NCAA hosted sessions at its convention on the future of Division I athletics.  But the feedback was skeptical and the detail missing.  The presentation reeked of bureaucratic speak such as new committees and task forces.

Now with this NLRB decision, you get the feeling the entire student-athlete / amateurism model is going off the rails.  But what did the decision actually say and how does it apply?

It says the scholarship (walk-ons are excluded) college football players at Northwestern University are employees, and have the right to unionize and collectively bargain for compensation and benefits.  The decision focused mostly on the level of control the school, via its athletic department and coaching staff, has over its athletes.  It covered in depth the athletes’ daily routine, the hours spent on football, and the rules that must be adhered to in order to remain on the team and keep the scholarship.  Special emphasis was placed on the fact the scholarship is contingent on a number of different factors which all ultimately are controlled by Northwestern, the employer.

Northwestern tried to argue that a 2000 NLRB decision involving graduate-students at Brown University should control, and lead to a determination the athletes are not employees.  (I went through a detailed analysis of this last month).  The NLRB said the Brown case did not apply here, and even if it did, the result would be the same.

Presumably, today’s decision would allow other private university athletes to follow a similar path.  The NLRB does not govern public institutions, so athletes at state schools will have to navigate the unionization process in their own state under state law.

To this point, the College Athlete Players Association (CAPA) has not said it will pursue increased financial compensation and/or salaries for performance.  It’s focus has been on better health care as well as some type of structure to receive funds from likeness and image use, as well as sponsorship revenue (i.e. along the lines of O’Bannon case issues).  However, the authority granted by the NLRB today would certainly permit increased compensation to be included in any collective bargaining.

It’s also difficult to read today’s decision and not think it could very easily be applied to many other sports at many different levels down the road.  As I mentioned, the focus was much more on the time commitment of the athletes and the control the coaches and school have over them, rather than the large amount of revenue the athletes in major college football generate.  Many student-athletes in non-revenue sports and at smaller schools are on scholarship, put in the same hours, and are under the same university control.  It will be interesting to see which group of college athletes follows in Northwestern football players’ footsteps.

There are two key dates coming up soon as this process moves forward.  Northwestern must file a list of eligible employees with the NLRB (Chicago) by April 2nd so that an election can take place regarding forming the union.  Then, Northwestern has until April 9th to file an appeal with the national NLRB in Washington, D.C.  It most certainly will do that, and where it goes from there is likely a long, windy road through the federal courts.

Northwestern football players won a victory today.  What remains to be seen is whether, upon further review, the decision is confirmed or reversed.

 

Follow Daniel at collegesportsbriefs.com and @Daniel Hare.