Education

NLRB: Northwestern Football Players Are Employees, Can Organize

by | March 27, 2014
 

By Alejandra Cancino,

Northwestern University football players on scholarship are employees of the school and therefore entitled to hold an election to decide whether to unionize, an official of the National Labor Relations Board ruled Wednesday.

The stunning decision, coming after a push by former quarterback Kain Colter backed by organized labor, has the potential to shake up the world of big-time college sports.

The National Collegiate Athletic Association and universities set the rules and cut the lucrative deals with TV networks and sponsors, exerting near total control over the activities of players known as "student athletes." But now those football players, at least at Northwestern, are employees too and may seek collective bargaining status, according to the 24-page ruling by Peter Sung Ohr, the regional director of the NLRB.

Ohr's decision is "revolutionary for college sports," said Robert McCormick, a professor emeritus at the Michigan State University College of Law who focuses on sports and labor law.

Experts said the ruling could have wide impact beyond Northwestern's locker room, potentially influencing other players, schools, and state and federal agencies. For example, McCormick said that if college players demand compensation for injuries suffered during training or a game, Ohr's opinion could raise the question of whether they should be treated as employees under the state Workers' Compensation Act.

The decision also opens the door for athletes with scholarships at public universities to move more quickly to unionize because state labor boards, which govern public universities, usually follow labor law interpretations issued by the NLRB.

There were many questions left unanswered, including whether a union vote among Northwestern players would succeed, but Ohr's decision is preliminary. Northwestern immediately said it will appeal to the NLRB in Washington, and experts anticipate the case ultimately could be heard by the Supreme Court.

"Northwestern believes strongly that our student-athletes are not employees, but students," Northwestern said in a statement.

"Unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes."

Northwestern's football players are the first in college sports to seek union representation. Behind the effort is the College Athletes Players Association, or CAPA, a union funded by Ramogi Huma, a former UCLA linebacker who has become an advocate for players' rights. CAPA is backed by the United Steelworkers, which is covering the group's legal expenses.

"This is a huge step toward justice for college athletes," Huma said.

He said the NCAA invented the term "student-athletes" 60 years ago in an attempt to prevent students from unionizing. Wednesday's decision, he said, asserts the rights of college athletes under labor law.

The union has said it would seek to negotiate over health and safety issues and does not intend to push for "pay-for-play" wages, which are not allowed under regulations issued by the NCAA. Among its demands, CAPA is seeking financial coverage for former players with sports-related medical expenses, independent concussion experts to be placed on the sidelines during games and the creation of an educational trust fund to help former players graduate.

It also wants players to receive compensation for commercial sponsorships, which it says is consistent with "evolving" NCAA regulations.

In siding with the union, Ohr said the football players primarily have an economic relationship with the university, which controls and directs their daily activities and compensates them in the form of scholarships, which are worth about $76,000 per academic year if the player enrolls in summer classes.

"The record makes clear that the employer's scholarship players are identified and recruited in the first instance because of their football prowess and not because of their academic achievement in high school," Ohr wrote.

Football players with scholarships, he said, "fall squarely" within in the labor law's definition of an employee. Ohr said those players spend many more hours on their football duties than on their studies. Furthermore, he said, the players are subject to special rules and policies that do not govern the general student population.

For example, he said, freshmen and sophomore students on scholarships are required to live on campus. Upperclassmen, he added, can live off campus but are required to submit their lease for approval to their coach, Pat Fitzgerald.

"Even the players' academic lives are controlled as evidenced by the fact that they are required to attend study hall if they fail to maintain a certain grade-point average (GPA) in their classes," Ohr wrote.

Northwestern argued that the term "student athlete" is still appropriate. "We believe that participation in athletic events is part of the overall educational experience for those students, not a separate activity."

The school had said that if the students were to be found to be its employees, they would be "temporary employees" and could not engage in collective bargaining.

Ohr disagreed. Per NCAA rules, he said, the players remain on the team for at most five years, but "given the substantial length of the players' employment it is clear that they cannot be found to be temporary employees under Board law."

Last month, Colter, the union's star witness, described the grueling football schedule that led him to drop his pre-med course load and switch to a less-demanding major.

Colter spoke of 50- to 60-hour workweeks and a coach who was "the bossman." He stressed that participating in football was a job, and as a result of it, he couldn't pursue his dream of becoming an orthopedic surgeon.

On Wednesday, Colter, who is training in Florida preparing for his April pro day before May's NFL draft, was getting ready for practice when he saw a message from the union's attorney.

"We won!" he yelled. A coach and others around him congratulated him, and he called family members, starting with his mom, Colter said.

He said he has been through a roller coaster of emotions since the union filed an election petition in January.

"I knew there would be some criticism, but people made it seem something that it wasn't," Colter said, adding that the story was portrayed as him vs. the coach.

Colter said he loves Northwestern and thinks Fitzgerald is the "best coach in the nation," but that doesn't take away from the fact that college football players are employees of the university and have the right to unionize, he said.

Colter said he is confident that if an election were held soon, the majority of Northwestern football players would vote to unionize. In January, he said, nearly 100 percent of players with scholarships signed union cards, and he believes they still feel the same way.

The union is not trying to organize walk-ons because they are not compensated via scholarships by the university and therefore are not considered employees.

A Northwestern scholarship player, who declined to be identified, said he was happy being a student-athlete at Northwestern and uncertain how he would vote, but he understood Colter's argument for unionization.

"I think it would benefit us because the NCAA is kind of backwards in how they kind of put restrictions on student-athletes," the player said.

William Gould IV, a former chairman of the NLRB, said Ohr's decision offers a thorough, factual examination of the issues and he is confident the NLRB will uphold it.

"This is a landmark decision," Gould said. "This is going to rattle the universe of universities."

(c)2014 the Chicago Tribune

Tribune reporters Teddy Greenstein and Christopher Hine contributed.

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