With the key words that “[i]t cannot be said the Employer’s scholarship players are ‘primarily students’,” the regional director of the National Labor Relations Board in Chicago ruled Wednesday that big-time college football players are paid university employees and are free to form a union.
The decision by Peter Sung Ohr came after Northwestern University and former Kain Colter had come to an impasse over Colter’s efforts to unionize players in order to obtain medical coverage and other benefits. It was a big, impressive win for Colter and the new College Athletes Players Association.
“So proud of my teammates, [CAPA president] Ramogi [Huma], lawyers, and supporters around the nation!” Colter tweeted Wednesday. “This is a HUGE win for ALL college athletes!”
But the win is only the first step. For one thing, the ruling does not apply to public universities. Athletes at public institutions are governed by state law — and 24 states have right-to-work legislation, Clay Travis points on in a FoxSports.com essay headlined “The NCAA is a dead man walking.” For instance, he notes, the Southeastern Conference has only one private institution and every school except Missouri and Kentucky is in a right-to-work state.
While the NCAA may be a dead man walking, it is a dead man with extremely deep pockets and a ton of lawyers on retainer. It does not give up without a fight. Ed O’Bannon filed a class-action antitrust lawsuit against the NCAA over four years ago and it only last month was given the green light to proceed to trial in June. O’Bannon is seeking to strike down the NCAA restrictions on athletes’ profiting from their names, likenesses and images.
The NCAA no doubt will appeal the regional director’s decision to the NLRB in Washington, D.C. Northwestern can take legal action as well. As it plays a delay game, the NCAA knows there will be a new American president in January 2017 and that could be advantageous to its cause. Michael McCann, SI.com’s legal analyst, noted:
Of course, it is important to note that the NLRB has been known to reverse itself on whether certain types of workers can unionize, especially after a new president appoints NLRB board members of different ideologies. For instance, it reversed itself on whether graduate students can unionize. This means it is possible that a future composition of NLRB board members may view student-athletes differently and reverse course. With that in mind, expect student-athletes at other schools to quickly seek unionization before there is a risk of a new policy.
ESPN legal analyst Lester Munson is skeptical of the NCAA’s chances of winning on appeal.
In its detailed presentation of the life of a Northwestern football player and in its analysis of the applicable law, Ohr’s opinion clearly anticipates the appeal. It will be difficult for Northwestern to make any significant changes or amendment to Ohr’s descriptions of the enormous commercial value of the players’ work and the demands placed on a player.
It will also be difficult for Northwestern to find legal precedents that will help it in its appeal. The critical precedent is a case involving Brown University and decided in 2004. Northwestern argued that that case’s ruling that graduate assistant instructors were students and not employees was the rule that governed the football players’ situation. But Ohr, in an impressive bit of scholarship, explains in detail why Northwestern is wrong and why the Brown ruling does not apply to scholarship athletes.
Northwestern will have a difficult time convincing the labor board in Washington that Ohr was wrong. In addition, Northwestern will be up against three members of the board recently appointed by President Barack Obama who are likely to lean in the direction of the union and against the university.
And there are any number of issues to consider as this plays out: How will Title IX be affected? Will athletes have to pay taxes on the value of their scholarships? The NCAA declared its stance Wednesday in a statement from its chief legal officer, Donald Remy:
While not a party to the proceeding, the NCAA is disappointed that the NLRB Region 13 determined the Northwestern football team may vote to be considered university employees. We strongly disagree with the notion that student-athletes are employees.
We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid.
Over the last three years, our member colleges and universities have worked to re-evaluate the current rules. While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college. We want student athletes – 99 percent of whom will never make it to the professional leagues – focused on what matters most – finding success in the classroom, on the field and in life.
At the moment, players won’t begin collective bargaining at private schools, Huma told Fox Sports. This isn’t about pay-for-play.
“They can now fight for protections,” Huma said. “Their medical expenses aren’t covered, so now they [can be]. They can negotiate provisions for brain trauma in contact sports. The NCAA doesn’t want to address that issue, and this is the first step in [forcing it].”
The first of many, many steps.