Congressional Republicans File Brief Opposing Union Rights For College Athletes

Northwestern quarterback Kain Colter has led the fight to form the first college athletes players union. CREDIT: AP
Northwestern quarterback Kain Colter has led the fight to form the first college athletes players union. CREDIT: AP

A group of congressional Republicans last week filed a brief with the National Labor Relations Board opposing the unionization efforts of athletes at Northwestern University, arguing that granting college athletes such rights is incompatible with the collegiate sports model and unlawful under the National Labor Relations Act.

The brief — led by Rep. John Kline (R-MI), head of the House Committee on Education and the Workforce, and Sen. Lamar Alexander (R-TN), the GOP’s ranking member on the Senate Committee on Health, Education, Labor, and Pensions — argues that NLRB regional director Peter Ohr erred in approving the Northwestern athletes’ union certification petition in March, and that the NLRB, which agreed to review the case in April, should overturn the decision.

“Despite critical distinctions between the university-student and employer-employee relationships, the Regional Director artificially conflated and improperly applied principles from the workplace with the educational environment. As a matter of policy and law, this is wrong: scholarship football players are not and should not be treated as” employees under the NLRA, the brief states. “The inevitable conclusion from the RD’s analysis in this case would lead to countless undergraduate students — in a variety of extracurricular activities — being considered employees of their colleges and universities.”

Ohr found that the Northwestern athletes met “employee” status under the common law test for employment because their athletic scholarships constitute a contractual agreement for services, that their coaches have control over them that mirrors an employers’ control over workers, and that athletes do not serve a role as “primarily students.” The decision did not automatically create a union for the athletes; instead, it gave them the right to hold a vote, the results of which are sealed until after the NLRB reviews the case.

The Republican brief lays out a series of arguments against unionization, relying heavily on the idea that Ohr’s ruling applied the wrong test in finding that scholarship athletes at large athletic institutions are employees. It also argues that unionization (or basic employee status) is “unworkable” and “incompatible” with the collegiate academic environment and the collegiate student-athlete environment. Giving athletes a say in their education, compensation, health care, and other related issues, the Republican lawmakers argue, would create competitive imbalances in college sports and, worse, infringe “upon the university’s academic mission” by giving athletes the right to bargain over issues like academic standards.

The Republicans may be correct that union rights for athletes could lead to similar rights for other students: graduate student teaching and research assistants at private colleges and universities have been seeking employee status from the NLRB (which granted such status in 1999 before overturning it in 2003), and their cause could become a part of the Northwestern case when it goes before the NLRB. But graduate assistants already enjoy those bargaining rights at many public colleges and universities, as well as at New York University, and it isn’t at all clear that they have compromised the educational mission of the schools they attend. As for the idea that such relationships are incompatible, the graduate students might provide guidance there too. It isn’t impossible to draw a line allowing them to bargain on issues directly tied to their work outside the academic schedule — i.e., working hours, conditions, and wages — but not on those directly tied to their academic relationship with the school, as Michigan State labor law professors Robert and Amy McMormick told ThinkProgress earlier this year.

The brief from Republicans isn’t surprising, given the party’s general stance on organized labor and initial Republican reaction to the Northwestern decision. Alexander, a former university president, immediately denounced the decision then. Other Republicans also reacted strongly, and state lawmakers in Ohio proposed a resolution barring athletes at state universities there from having similar rights (if the NLRB approves the Northwestern union, the decision would apply only to private colleges and universities).

The NCAA also filed an amicus brief with the NLRB last week. It is not a direct party to the case, but its brief highlighted “many far-reaching destructive consequences” it says unionization would have for college sports as a whole.

While much of the discussion around a collegiate players union has focused on compensation, the players and the College Athletes Players Association have honed in on other issues, including better health care and scholarship protections for injured athletes, full cost-of-attendance scholarships, and a voice in improving educational opportunities available to college athletes.