Law: Can college student athletes form a labor union?

Published: March 23 2014 | 5:30 am - Updated: 1 April 2014 | 10:02 am in

Several weeks ago, several Northwestern football players shocked employment lawyers across the country by announcing they were seeking to unionize.

The College Athletes Players Association, or CAPA, with assistance from the United Steelworkers union, has petitioned the National Labor Relations Board (NLRB) in Chicago to represent the college players. A hearing was held last week on the issue, and no ruling has issued yet.

The reason for the uproar is that many believe “student athletes” are not “employees,” and therefore eligible for protection under employment laws. However, the law has not always been clear on this issue.

Employment laws, by definition, apply to employees and employers. Many think of employees as those people who report to work every Monday morning and earn a salary.

They argue that “student athletes” are not employees because of their status as students and their participation in college sports is voluntary.

However, others have noted that those same unpaid college athletes generate hundreds of millions of dollars in television contracts alone. They also produce sponsorships, ticket sales, merchandise purchases and championship payouts for the NCAA.

“These athletes generate billions of dollars per year, which pay coaches and athletic administrators multimillion-dollar salaries,” said Ramogi Huma, founder and president of the CAPA. “Yet the NCAA scholarship limits leave players with $3,000 to $5,000 per year in out-of-pocket expenses.”

The biggest hurdle for student athletes will be to establish they are true “employees.” For many years, teaching and research graduate assistants at colleges and universities have been found to be employees subject to the collective bargaining statutes.

For example, many graduate assistants in state schools, including the University of Iowa, are represented by a labor union. One argument against the unionization of both graduate assistants and athletes is that they are only “temporary” employees and only will be at the school for a finite period of time.

But are student athletes really similar to graduate assistants? The NLRB, or the Public Employment Relations Board for Iowa public schools, may find that getting “paid” by a free scholarship and expenses stipend is not the same as being paid a salary and working in a classroom.

At the Northwestern NLRB hearing, for example, there was testimony that the athletic scholarship totaled $76,00 per year in tuition, fees, books and room and board. Unlike a salary, however, such compensation is tax free.

The agencies also likely will examine how much “control” a university has over the student athletes. Because student athletes devote up to 30 hours or more per week to training, travel, practice and events, school “control” over them is substantial and favors the student athletes.

At the hearing last week, for example, former Northwestern quarterback Kain Colter testified extensively on a typical college football player’s daily schedule and concluded, “It truly is a job.”

He compared August training camps with members of the military training for combat.

Another possible test, however, examines the relationship between the students and the school and whether the relationship is primarily educational or economic. As only top athletes receive athletic scholarships — making their scholarship mostly dependent on the value of their athletic prowess — and are not receiving course credit for participating in intercollegiate athletics, many commenters believe the NLRB will find the relationship more economic than educational.

Assuming student athletes can jump these various hurdles and prove to be employees subject to the collective bargaining laws, what would the collective bargaining agreement look like? Schools would have to bargain over mandatory subjects of bargaining such as wages, hours and terms and condition of their work.

Would it cover practice time, class time and studying, and the right to bargain over certain equipment provided by apparel and shoe companies? Among CAPA’s goals are guaranteed coverage for sports-related medical expenses for current and former athletes and compensation for sponsorships.

The group also plans to establish a trust fund to help former players complete their degrees and bargain for an increase in athletic scholarships.

Here’s another question: If college athletes are deemed to be employees, would they also be eligible for workers’ compensation and unemployment benefits?

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