Law: College student players granted right to form a union

Published: March 30 2014 | 6:00 am - Updated: 1 April 2014 | 10:19 am in

In last Sunday's column, we discussed the Northwestern football players’ efforts to form a labor union with the Steelworker Union’s financial help.

Following a hearing before the National Labor Relations Board’s (NLRB) regional director, that regional director last week finally spoke: Northwestern scholarship football players are “employees” and therefore are eligible to hold an election to decide whether to unionize.

Among other findings, the NLRB found the players spent 50 to 60 hours a week on their football duties in training camp before school started, and spent another 40 to 50 hours a week during the three to four month football season. According to the NLRB: “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.”

The NLRB also found that players get no academic credits for playing football; that the coaching staff is not on the school faculty; and that the players are recruited for their football prowess and not their academic achievement in high school.

ESPN called it a “blockbuster” ruling. One law professor claimed the NLRB’s decision was “revolutionary.” The Associated Press called it “stunning,” claiming it had the potential to “completely upend the way college athletes function.”

Northwestern University agreed, and claimed that that unionization and collective bargaining were not “appropriate methods” to address student athlete concerns. Others were jubilant.

“This is a huge step towards justice for college athletes," said Ramogi Huma, the College Athletes Players Association’s union’s president.

Not so fast, everybody.

First , even though the ruling is carefully and well written, it will be appealed to the NLRB in Washington, D.C., where the NLRB could affirm it or overturn the decision. However, the election for the players will still be held unless the NLRB stays it, and the ballots simply will be impounded until the NLRB finally rules.

Assuming the NLRB affirms the decision — which is likely — and the union wins the election, Northwestern could refuse to bargain with the newly certified union. That refusal again would have to be appealed to the NLRB, the federal court of appeals and, finally, the U.S. Supreme Court.

This will take years. The original players at Northwestern will be long gone by then.

Second, as noted, the union also must win a secret ballot election by a majority vote. Unions currently win around 65 percent of all such representation elections.

Every story has two sides, however, and remember that an employer has the right before the election to talk to the players and express their opposition to a union. The players could lose the election and have to wait another year before filing again.

And, despite all the publicity, the NLRB decision is very narrow. It only affects private schools such as Northwestern, Notre Dame, Stanford and so on. The NLRB’s ruling does not affect public schools such as Iowa, Nebraska and others, which have their own laws.

Of course, these various state agencies such as the Iowa Public Employment Relations Board often follow the NLRB’s labor law rulings, so it may lead to some unionization efforts at public institutions. But in any event, the NLRB ruling itself is a significant first step that could result in enhanced leverage by college athletes with the NCAA and Congress about their treatment.

So what’s next? Are such student athletes subject to state workers’ compensation and unemployment laws? Will the collective bargaining contract look like those in the NFL and NBA, with incentives paid for BCS bowl wins?

What happens if the player athletes exercise their right to strike — will the employer be able to replace them? (The NLRB ruling expressly stated that college “walk on” players without a scholarship are not permitted to unionize.)

Will scholarships now be taxable to the student players as income? (The testimony at the Northwestern hearing was that a football scholarship was worth $76,000.) Will unionization result in a bidding war between schools for recruiting of top players? (For example, Northwestern may be offering a $15,00o stipend, but the University of Alabama is merely offering $5,000.)

Finally, what about Title IX, the federal law that prohibits sex discrimination against females in higher education including its athletics programs? (Under that law, female athletes cannot be denied the same benefits of male athletes.)

While it is uncertain whether the Northwestern players’ union drive actually will result in a collective bargaining agreement for the college athletes, one thing is for certain. It has brought attention to the treatment of college athletes and opened a dialogue on the topic.

The decision can be seen here.

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