Worst Case Scenario for the NCAA? Not Quite…But Close: The Northwestern Union

02
Apr

Last week, on Mar. 26, the National Labor Relations Board’s Regional Director for Region 13 (Chicago), Peter Sung Ohr, made the first of a possible sweeping type of decisions in college athletics. Everyone has heard by now, but Ohr decided that a group of college athletes at Northwestern University would be allowed to form a union and collectively bargain for their employment conditions. This isn’t a universally understood decision, and for good reason. While I’m no expert, I have taken time to dive into this and will try to walk through the decision with anyone reading this. The Northwestern union is labeled CAPA — the College Athletes Players Association.

Going to the source is always step one. Despite it being written in some light legalese, here is the full written decision by Ohr.

What does it mean?

In the simplest terms allowable, it means the group of petitioned players at Northwestern is permitted to elect representatives for collectively bargaining for their employment rights and conditions.

In coming to this decision, Ohr used various specific case law and the National Labor Relations Act. Namely, the petitioned for group (Northwestern scholarship football players) had to fit the definition of employees under Section 2(3) of the NLRA.

DEFINITIONS

 Sec. 2. [§152.] When used in this Act [subchapter]–

 (3) The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act [this subchapter] explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.

In attempting to convince the NLRB that the players should not be allowed to unionize, Northwestern offered three separate but related arguments. 1) The players are more like graduate students of a university than employees (as in the Brown University case – 342 NLRB 483 (2004)). 2) The players are technically temporary employees if employees at all (as in the Boston Medical Center case – 330 NLRB 152 (199)). 3) The petitioned for group of Northwestern students is arbitrary.

Let’s take these one by one to see how Ohr decided on their merits. Because of simplicity, I will actually be going in reverse order.

Reason 3

In reason three, Northwestern contended that the group being petitioned for was an arbitrary group in the sense that there was no clear reasoning for the separation of scholarship players and non-scholarship players. This is likely one of Ohr’s more shaky decisions in the case because he relies on evidence to rule that there is a de facto employment relationship between the two groups, but also determines that the scholarship/non-scholarship groups are different based solely on their lack of pay (an admittedly large point) and a slight allowance of some players to possibly be allowed to take classes during practice times (scholarship players are not allowed to do so). Northwestern’s contention is that both of these groups have aligned interests and would need to be bargained for together and the separation of them is arbitrary. However, if the non-scholarship players were included in the group, it would take a large portion of Ohr’s decision away, which relies on the equivalency of scholarships to payment. Having said that, the serparation based on that is a non-arbitrary separation in and of itself, almost making the Northwestern point self-defeating.

Reason 2

In Section IV(D) of Ohr’s decision, he explains why the scholarship players are not akin to temporary employees. In the NLRB’s decision for Boston Medical Center, 330 NLRB 152 (1999), Chairman John C. Truesdale noted the extent to which temporary employee designation does and does not apply.

The Board has never applied the term “temporary” to employees whose employment, albeit of finite duration, might last from 3 to 7 or more years, and we will not do so here. In many employment relationships, an employee may have a set tenure and, in that sense, may not have an indefinite departure date. Athletes who have 1, 2, or greater years’ length employment contracts are, theoretically at least, employed for a limited time, unless their contracts are renewed; work at a legal aid office may be for a set 2-year period; a teaching assignment similarly may be on a contract basis. To extend the definition of “temporary employee” to such situations, however, would be to make what was intended to be a limited exception swallow the whole.

Essentially, the fact that the football players are “employed” for a term of, at most, five years, does not make them temporary employees, and thus NOT employees for the purposes of collective bargaining, according to the NLRB.

Reason 1

Section IV(C) and its subsections go into much greater detail on Ohr’s decision not to have Brown University, and its decision on graduate assistants of universities not being considered employees, be applicable. However, for our purposes, there were four reasons.

1) Graduate assistants are considered students in the sense of their time commitments. After looking at the breakdown of hours spent between their “work” requirements and student requirements, it was clear that the graduate students put a relatively few amount of hours into their work as compared to their studies. In contrast, Ohr notes that the football players commit between 40-50 hours per week on football-related activities compared to just 20 hours per week on their studies.

2) The work that graduate students do in the classroom as graduate assistants and instructors of lower level classes is a vital part of their education process according to the NLRB decision. This decision notes an educational relationship instead of an economic relationship. The football players do not share such a relationship with the university because their football activities, while valuable to some students’ growth, does not attribute to their role as students, only as athletes. Putting a further valley between the student-athlete designation.

3) The graduate students in Brown University have a relationship with a faculty member that was directly critiquing and directing their work. The graduate students were being instructed by faculty/teacher representatives of the university. The football players are being taught by a non-faculty head coach and coaching staff. The head coach’s job is solely to teach football and to win football games for the university, not to teach the players as students, but only to teach them as athletes. The overlap in useful lessons learned because of commitment and hard work to their craft are noted but do not carry enough weight to create the student/faculty teaching relationship.

4) The graduate students compensation via scholarship money is determined to be financial aid as opposed to traditional compensation. The difference between the compensation for football players and graduate students is that the compensation was the same if you were a graduate assistant or a non-working, graduate fellow. Also, the compensation for graduate assistants is not tied to the quality of the work they provide. The football players compensation is tied to their performance via their recruitment based solely on their on-field abilities. Furthermore, the players lose their scholarship if they “voluntarily withdraw” from the football program in order to focus on school.

Who are they bargaining with?

Now that the players have won the right to elect representation and unionize…who will they be collectively bargaining “against”? The answer is Northwestern University, not the NCAA. This presents interesting problems for the collective bargaining process as the NCAA can still suspend players that violate their rules (mainly over compensation issues) and they can still discipline the program for providing such benefits.

The players are more openly seeking  health insurance that extends beyond their playing career and financial support in the event that they suffer a career-ending injury while playing for the university. They can also bargain for improved safety regulations and equipment. While not openly noted yet, it would be naive to think that the players do not want to eventually have the ability to bargain for a piece of the massive college football revenue pie. But, that will have to be done at a later date, possibly once there are more unions at universities.

The comparison to collective bargaining between the NFL and NFLPA is an obvious one, but not quite a perfect one. This would assume that the college players can bargain against the college football entity as a whole, the NCAA. However, the athletes are now employed by each individual university and not the league as a whole. This could one day change if the universities and the NCAA decide it is in their best interest to have the NCAA be an overarching bargaining body for the whole lot of them.

Additional Issues

I am not familiar enough with, nor am I currently willing to decipher, the implications that any future compensation given to men’s collegiate football can have on the rest of the NCAA athletic community, including, and especially, the requirements that may become necessary via Title IX.

Men’s College Basketball is the only other true money making college sport and will be the closest analog to this situation. But college baseball could have various changes, including the issue of agent representation by “amateur” athletes when bargaining with professional franchises. Currently, college baseball players don’t have to declare for the draft, but if they are drafted and it comes to light that they allowed an agent to negotiate the terms of their contract or lack thereof with the franchise, then they can lose all eligibility to compete at the collegiate level. If the amateur status is removed from college athletics entirely, then this designation will almost certainly disappear with it, allowing players to rightly be informed of their options by a professional when bargaining against professionals. The players will vote on Apr. 25 to decide whether to be represented by CAPA.

The scholarships that are received by students are not taxable income under the current situation. That could change with a change in designation from students to employees. If the scholarships are primarily used as compensation for abilities, they are more akin to a paycheck than a student receiving financial aid.

One more thing. This decision will be appealed. The case can be appealed and will likely go to the main NLRB to seek the decision being reinforced or revoked. After that, the decision can also be taken to the U.S. Appeals Courts, where it could eventually find its way to the Supreme Court. I wouldn’t rule this out but it will be a long time before that happens. We may not see what happens through this process for many years.

-Colby Rogers (@FrontOfficeGuy)

About the author: Colby Rogers

Colby is the Editor-in-Chief, Founder and Lead Contributor to Other League. Also a law student focusing on Labor & Employment law and intersections with law and sports. You can find him on Twitter via @Colby_OL.