With the help of the National Collegiate Players Association, a nonprofit group that advocates for greater rights for college athletes, a group of college football players will file a petition to form the first official players union in the history of collegiate sports, ESPN’s Outside The Lines reported Tuesday:
Ramogi Huma, president of the National College Players Association, filed a petition in Chicago on behalf of football players at Northwestern University, submitting the form at the regional office of the National Labor Relations Board.
Backed by the United Steelworkers union, Huma also filed union cards signed by an undisclosed number of Northwestern players with the NLRB — the federal statutory body that recognizes groups that seek collective bargaining rights.
“This is about finally giving college athletes a seat at the table,” said Huma, a former UCLA linebacker, who created the NCPA as an advocacy group in 2001. “Athletes deserve an equal voice when it comes to their physical, academic and financial protections.”
The NCAA has spent years embroiled in fights over the rights of its athletes, the biggest of which is the lawsuit from current and former players (led by former UCLA basketball star Ed O’Bannon) that argues players should have control over the use of their names, images, and likenesses and share in the revenues they help create. That poses a major threat to the NCAA, because a loss would mean a rejiggering of its financial model to give players a cut of revenues.
A union drive, however, would take a massive step forward: it would, for the first time, require classifying athletes as employees who had the right to organize, bargain, and earn compensation for their labor (for now, ESPN reports, only men’s basketball and football players would be eligible to join, as they are in the best position to argue for employment rights).
That may sound radical, but it isn’t necessarily. Labor lawyers, advocates for paying players, and some college professors have argued before that athletes should be considered employees. Jeffrey Kessler, a labor attorney who has worked for all four major American professional players associations, told me in 2012 that “there are good (legal) arguments that Division I football is basically a business, and that students are exploited as workers. And therefore schools should be free to compensate athletes in any manner that they want to, without NCAA restrictions,” though he acknowledged that as currently recognized, those athletes have no rights under federal labor law.
As Bylaw Blog’s John Infante notes, the Northwestern case will go before an NLRB with unsettled law on this issue. Unlike public schools, which are covered by state law, Northwestern and other private universities are covered by the National Labor Relations Act, and the NLRB hasn’t clearly determined how to approach these issues legally. New York University graduate students won the right to organize from NLRB, then lost that right when the board revisited the decision later.
How could the NLRB rule that athletes are employees if they are also students? It could find that they serve a dual-purpose on campus, acting as students when they are pursuing their education but as employees when they are playing sports that generate a benefit for the university. A regional NLRB judge ruled that way in 2011, asserting that graduate students who also teach (i.e. “work”) for the university in which they are enrolled have “a dual relationship” that is “both academic and economic.” It’s not that hard to envision a similar classification for athletes.
A victory for Northwestern’s players would cover other athletes at private universities, but not to those at public schools. That could leave players governed by different sets of laws but all playing under the same NCAA umbrella.
It’s going to be years before a final decision is reached in this case. The athletes will have to win before a regional NLRB panel, then in front of the NLRB itself (and the NLRB may not be filled soon if a Supreme Court ruling vacates President Obama’s recess appointments to the board). The NCAA and Northwestern would almost certainly oppose them and appeal any loss to federal court. The writing on the wall, however, is clear: there is momentum building for sweeping NCAA reforms that address the rights of athletes, and not just with a stipend or some other form of temporary reprieve that merely perpetuates the current structure that gives them little to no say in the system.