Sports in the courts ... Unionization efforts may produce a Pyrrhic victory

By Ned Macey

Over the past 30 years, both professional and major collegiate athletics have seen exponential growth in revenue. While professional athletes have seen corresponding leaps in what they are paid, college players still receive a free education but no actual cash. They spend their careers surrounded by money, in state of the art facilities, with elite trainers and academic advisers (to say nothing of their extraordinarily wealthy coaches) but do not share in the increased revenue.  Pro athletes are all members of unions, so Northwestern University football players are now seeking to unionize. They may win the right to unionize, but that victory is not likely to bring a revolution in the status of college athletes.

Northwestern’s football players filed a petition to unionize with the National Labor Relations Board, the organization that administers federal labor law. Northwestern opposed the petition, arguing that the football players are not “employees” under the Act. For support, the university relies primarily on a 2004 NLRB decision regarding graduate students at Brown University.   The board found that the graduate students “are primarily students and have a primarily educational, not economic, relationship with their university.” 

At a hearing before an NLRB, the parties disputed whether they were “employees.”  Northwestern, following the Brown decision, emphasized that the football players are admitted students who have serious academic responsibilities and emphasized that the students actually achieved at a high level. The players presented evidence that their academics were subordinated to the enormous time commitment required by football.

Nobody disputes that the athletes are students. I do not believe anyone would argue that an experience like I had as a Division III baseball player was remotely an employer-employee relationship, even though we practiced and played dozens of hours per week, I skipped classes to attend games, and more talented players than I were likely admitted to my college on the basis of their athletic ability.

But, not only were we not paid, we did not even receive scholarships, and our team generated negative revenue for the school. Division I football players earn scholarships that are worth tens of thousands of dollars and participate in a sport that generates millions of dollars in revenue for the school. As such, they can distinguish themselves from teaching assistants, who are enrolled in Ph.D. programs (although some of those students do obtain grant money for the school). 

As a practical matter, the Brown precedent may be of little value. That decision overruled a 2000 decision regarding NYU that recognized graduate assistants as “employees” with rights to unionize. The NYU decision came with a board with a majority of Democratic members; the Brown decision came with a majority of Republican members. With Democratic President Barack Obama in the White House, again the board is majority Democratic. It would not be surprising if they were sympathetic to efforts to organize by football players who spend thousands of hours a year performing tasks that earn millions for their universities. 

But, even if the players are victorious, the decision will have limited effect for two reasons.  First, the NLRB only deals with private universities. Second, the players are attempting to negotiate with their own universities, while the primary rules that govern them are made by the NCAA. 

On the public employer issue, Northwestern is a member of the Big Ten Conference. Starting next year, the Big Ten will have 14 members (it is unclear if the Conference’s inability to count was submitted as evidence that the students could not be getting that strong of an education).  Of those 14 teams, only Northwestern is a private entity. The other 13 schools are public universities that are not subject to the NLRB’s jurisdiction. These schools are subject to state-law determinations about whether public employees can unionize. 

The state of public-employee unions is an extremely hot topic, with major restrictions passed in recent years in supposedly union-friendly states such as Michigan and Wisconsin. It seems unlikely that a wave of state legislatures and state labor boards would open the door for “student-athletes” to form unions that allowed them to negotiate with their “employers.” Therefore, even if Northwestern “wins,” the reach of the decision will be limited in scope. 

Furthermore, college athletics are simply different than pro sports because the union drive is against an individual school and not the league at large.  In baseball, a player for the Tigers can sign a contract with that team, but it is freely understood that he can be traded to any other team in baseball, and they sign an MLB Uniform Players’ Contract. Therefore, players are not trying to unionize the Tigers while competing with the non-union Arizona Diamondbacks. 

Here, the players are attempting to unionize one school, but that school is part of the broader NCAA, which sets out the rules for its member organizations. The players are asking for such benefits as better medical care, change in practice conditions, and various concussion protections.  The players throughout the process have been complimentary of their experience at Northwestern. However, the stated goal is about achieving a voice, specifically on medical issues. A unionized football team could at least have a seat at the table to discuss basic issues about how the players are treated.  

But, they cannot ask for money because no NCAA school can pay their employees. If Northwestern agreed to pay them, they would be kicked out of the NCAA.  If dozens of schools unionize, then maybe pressure could be applied to the NCAA, but that’s a long way down the road. 

Instead, the more likely option for bringing a cut of revenue to players is playing out in a federal courthouse. Former and current players have filed an antitrust suit challenging the NCAA’s refusal to provide revenue to athletes. A federal court judge in California just denied the NCAA’s summary judgment motion setting a trial for June. If the NCAA is found to be violating anti-trust rules, it could lead to a sea change in college athletics. We’ll follow up on those developments in future editions of Sports in the Courts. 
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Ned Macey is an attorney with Nacht Law in Ann Arbor, a firm that also has offices in Birmingham and Traverse City.