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Making Sense Of The Labor Ruling Allowing Northwestern Football Players To Unionize

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"Making Sense Of The Labor Ruling Allowing Northwestern Football Players To Unionize"

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Northwestern quarterback Kain Colter

Northwestern quarterback Kain Colter

CREDIT: AP

The Chicago regional office of the National Labor Relations Board on Wednesday handed down a decision that may have huge implications for the future of college sports, ruling that college athletes at Northwestern University were not merely students at the school but employees of the university too. As such, the NLRB ruled, the athletes who petitioned the board, led by former Wildcat quarterback Kain Colter, had the right to form a union, which if successful would be the first in the history of college sports.

It’s a preliminary ruling that Northwestern plans to appeal, so the fight is far from over. But it’s still a big decision that could have major ramifications for college sports and the NCAA in the future. So to help break it down, I spoke with Amy and Robert McCormick, a husband-and-wife team of labor law professors at Michigan State University who co-authored a 2006 academic paper about why college athletes should be recognized as employees under federal labor law, to break down some of the basics of the decision and its implication. Below is a loosely edited transcript of our discussion.

First thing’s first: why did the athletes win?

Amy: Under the National Labor Relations Act, which is federal law, there’s a definition for the term employee. You’re not protected by the act, you don’t have these bargaining rights, unless you’re an employee. That definition forms the basis for what the regional director’s opinion said. Part of it is that whoever it is that’s being asserted as an employee has to be providing services for another, be compensated for those services, and in terms of how they perform those services, they have to be under control of the purported employer. The employer has to have the ability to control or the right to control how they perform their services.

So each part of the opinion addresses a different element of that decision. Do they perform services for the university? Yes they do. Are they compensated for that? Yes they are, in terms of their scholarship, which could be taken away if they withdraw from the team. Does the university have the right to control how they perform their services? Yes it does. The coach has all these rules, the lives of these athletes are regimented by coaches down to the minute. They’re given schedules for what they have to do and when. The opinion lays out a lot of details of that, and all elements have to be proven for these guys to meet the definition of employee.

The College Athletes Players Association says they want to bargain on all sorts of issues. The NCAA keeps talking about compensation. What does a union mean for these athletes? Does it mean they’re going to get paid?

Amy: If the athletes win the appeals and then have the election and the election’s successful, then they have a union. All that does is give them a right to talk about these issues. It doesn’t give them a right to win the negotations. It doesn’t mean they’re going to start asking for pay, because the way the rules are at the NCAA right now, NW would be kicked out. It’s not in the interest of the players to want the school kicked out. They’re very unlikely to ask for things that would cause problems like that.

What they’re going to ask for, I believe, is more help with things like health insurance both during their time as athletes and after school. (Ed note: Here’s a list of what the athletes say they want to bargain for.)

They might seek to bargain about whether athletes can seek to bargain with commercial ventures so they can use their image to promote products. Perhaps the athletes ought to be able to do that. That would require some changes of NCAA rules, but they might seek to have Northwestern and other schools, if there are other unions in the future, to lobby within the NCAA to change those rules, though that would be down the road.

Robert: All that would happen would be that, and this is an area of great misunderstanding, is that Northwestern University will have to sit down with CAPA and bargain about certain subjects that both parties want to bargain about. That’s really all it means. It doesn’t mean the university has to give into anything. It doesn’t mean any of the current systems are going to be radically altered. It just means they have to negotiate in good faith.

The union, as Amy indicated, isn’t going to take any position that’s going to take Northwestern out of NCAA compliance, because it would defeat their objective and render their members ineligible. So at least initially, it’s going to be pretty circumscribed, careful, conservative bargaining. And then we’ll see where it goes.

I know the NCAA came up with “student-athlete” in part to fight off worker’s compensation claims. Does recognition as “employees” give athletes the right to worker’s comp?

Amy: It does not automatically result in any conclusion that they are employees for workers comp or other purposes, but it opens up the possibility that they might argue (that) in a future case. The reason it doesn’t automatically cause that result is that the examiner’s decision is only an interpretation of the NLRA. There would have to be separate litigation with another ruling for another law to have the same effect. But I think to the extent people start viewing the relationship differently, to the extent people starting viewing it as a employee-employer relationship, an athlete might be more likely to win such a future case. But it doesn’t automatically trigger anything (other than a union election).

Robert: Certainly any injured football player who wants to bring a worker’s comp case will look to the regional director’s ruling. It doesn’t have immediate direct impact, but it’s out there now. It’s a well-reasoned opinion and lots of people will be looking to it if they file a worker’s comp claim or under some other statute.

So compensation is out of the question, at least for now?

Amy: I don’t think it will lead to that unless athletes at a lot of schools unionize, because it really would require a change in NCAA rules and for the NCAA to change its rules member schools would have to vote to change the rules. If it’s just one university saying let’s change the rules to pay the players, they’re outnumbered. It’ll have to be a much broader set of votes in favor of change before that happens.

The decision only applies to private schools, not public state universities. How will that work? And how can athletes at those schools get this right?

Robert: The National Labor Relations Act just covers private employers and private employees of those employers. If athletes at, say, Michigan State or the University of Michigan wanted to do the same thing they would have to proceed under state law. In Michigan there is a law that gives basically the same rights to public employees to organize and bargain collectively, but they’d have to go through the state agency rather than the federal agency, and that would be true in other states that have laws like Michigan does, and many of them do but some of them don’t. And in those circumstances they would not have the same rights that the Northwestern players have.

What about in the south, where states have right-to-work laws? Those will keep any of them from unionizing, right?

Robert: All the right-to-work legislation means is the employer and the union are forbidden from entering into a contract that requires the employees tender dues in order to keep their jobs. If this came up in a right-to-work state, they would still be able to organize and bargain collectively. They would just be forbidden from entering into a contract with a union security clause that requires the payment of dues or fees to keep their ‘jobs’ on the team. Now there’s no question Right-to-work laws make it more difficult for unions to survive…but that’s a totally separate question as to whether or not (athletes) are employees.

In pro sports, the athletes negotiate with the larger organization or sports league, not their individual employer. Why can’t college athletes do that?

Robert: Well the NCAA is not the employer, it’s just a trade association of all the employers. At this point, unless all the employers got together and ceded their rights to bargaining to the NCAA, it wouldn’t happen. That’s possible, you can have multi-employer bargaining, and it’s possible that that would happen way down the road, but at this point the bargaining would not be the NCAA. The universities are the employers and the players are the employees.

It’s really hard to look down the road. If it does happen, and there is a national movement toward organizing among college athletes, then it would be a very different world and the universities could just turn over bargaining duties to the NCAA and there would be a national bargaining agreement.

(Ed note: In which case they’d negotiate with the NCAA the way, say, the Major League Baseball Players Association negotiates with Major League Baseball).

What does this mean looking down the road? Is this going to fundamentally change college sports? Is it going to destroy them, as the NCAA says?

Amy: It’s very hard to say what will happen because so much depends on the decisions the different parties make along the process. There are a lot of possible outcomes, some of which would have very different outcomes from each other. There’s a lot of speculation that would be involved in trying to predict what’s going to happen, and I would say it’s not even necessarily likely to come true because the parties could very easily do something that makes another outcome likely.

There’s a lot of commentary out there, especially from the NCAA side, that this is going to destroy college sports. But if the parties want college sports to continue, there are certainly things they can do to make sure that’s the case. They’re not going to allow this wonderful tradition and very lucrative industry to stop existing. There are a number of things they can do to allow it to work and work very well – and still have it associated with colleges and universities. They’re not going to allow that to go away. They’ll make the adjustments that are necessary.

Robert: We just don’t know where this is going to go. There’s lots of horror stories and hand-wringing, but as Amy said, there’s lots of money to go around, and my thinking is this is not going to kill the golden goose. Quite the contrary. This is going to be absorbed just as labor unions were into American industry.

Amy: This could make college sports even more popular because the dishonesty that’s in it right now, which everybody knows is there, it won’t be this dishonest situation any more. Pro sports haven’t become less popular, so I don’t see why it has to have that effect on college sports.

I know we’re back in the realm of hypotheticals, but the NCAA doesn’t generally make changes benefiting athletes unless it is compelled by the law or other outside factors. Could this eventually cause those changes, even if it’s far down the road?

Robert: I think so. There’s going to be a big push-back on this from the NCAA, but if it continues to go forward and the decision is upheld and other athletes get involved, I think there could be a real change in which athletes would finally have a say-so in their working life.

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