The NCAA’s NLRB Problem

In the winter of 2014, the National Labor Relations Board office in Chicago received union cards from over 60 Northwestern University football student-athletes indicating their attempt to unionize.  The cards were delivered by Ramoji Huma, a former football player and graduate of UCLA and Tim Waters the director of the United Steelworkers Political Action Committee.  The intent to create a student-athlete union was a cause that Huma had been working on for almost a decade before his trip to Chicago.  The cause was rooted in an effort to secure rights for student-athletes participating in collegiate athletics, specifically Division I FBS football student-athletes.

As a football player at UCLA, Huma encountered several occasions where NCAA policies led to financial hardships and were unnecessarily restrictive and punitive.  As a sophomore, he founded the College Athlete Coalition which later morphed into the National College Players Association.  The mission of the NCPA was to advocate for student-athletes and ensure their health, well-being and safety were prioritized by the respective athletic departments and universities through legal measures founded in labor relation policies.

Huma’s future partner would emerge in 2013 as a quarterback for the Northwestern University football team.  Kain Colter also encountered problems as a student-athlete that made him question whether the long-accepted practices were actually appropriate. Unable to continue on with a major in premed because his football schedule was incongruent with his class schedule, Colter was also unable to make ends meet with the stipend he received for living in off-campus housing.  Upon commiserating with fellow student-athletes who also complained about the lack of academic support they received, Colter realized the endemic nature of the issue he was living.  Although athletic institutions, conferences and the NCAA were monetarily benefiting from student-athlete participation in sports, specifically football, the student-athletes were not reaping those benefits.  According to studies, some were even living below the poverty line.

For Huma and Colter, the current state of college athletics was unacceptable; they were determined to elicit a change.  As a current student, Colter had the ability to galvanize his fellow teammates and make a “statement” while on the field during nationally televised games.  Huma didn’t simply relegate his recruitment to just Colter, he had built a small network of student-athletes on 150 campuses.  And when Colter appeared on a Saturday televised football game with “APU” (All Players United) on his wristband, the protest was officially launched.

Although the initial decision of the NLRB was to certify the Northwestern football player’s union, on appeal, the board changed its mind and rescinded the certification.  Their rationale was as follows:

“By statute the Board does not have jurisdiction over state-run colleges and universities, which constitute 108 of the roughly 125 FBS teams. In addition, every school in the Big Ten, except Northwestern, is a state-run institution.  As the NCAA and conference maintain substantial control over individual teams, the Board held that asserting jurisdiction over a single team would not promote stability in labor relations across the league.” (NLRB, 2015)

By 2016, Huma and Colter still didn’t have a player’s union that was recognized by the NLRB but several other changes that occurred within college athletics can be attributed to the push by the NCPA and its leaders.  Improvements such as:

  • $40 million settlement with CLC, EA Sports and NCAA for the improper use of student-athlete name, image and likeness through the Ed O’Bannon case.
  • Many football conference (including all Power 5 institutions) requiring the cost of attendance provision.
  • NCAA no longer requiring student-athletes sign the name, image and likeness release form in order to receive their grant-in-aid.

A new development to the story came in February 2017 when Richard Griffin issued the statement that “scholarship football players in Division I Football Bowl Subdivision private-sector colleges and universities are employees” under the National Labor Relations Act (New, 2017).”  As general counsel for the NLRB, Griffin’s statement does not address whether players may unionize but does indicate that they enjoy certain protections under the law just as regular employees.  In essence, they can request improved conditions including pay without worry of retaliation.  The general counsel for the NCAA, Donald Remy, disputes the NLRB’s new position, positing that “students who participate in college athletics are students not employees (New, 2017).”

There are many opinions on whether student-athletes should unionize.  The most controversial of those being the money sharing.  Although conferences are signing billion dollar deals with media rights holders, equating to each athletic department receiving eight-figure payouts annually, the trickle down of funds doesn’t make it to the student-athletes who make these payments possible.  With million dollar salaries for athletic directors and coaches, student-athletes continue to be relegated to tuition, room/board and books.  Some question why student-athletes receive the least compensation for doing the lion-share of work.

With the presence of a union, student-athletes would be able to effectively negotiate better compensation for the services received.  Currently, they have no bargaining power, especially prior to the initial NLRB decision which led to guaranteed scholarship agreements.  As a union, student-athletes at private institutions could work with university administration to determine better compensation standards.

Additionally, supporter of unionization attribute it to the health of student-athletes, even after they’re eligibility runs out, as a monumental reason why unions are needed.  The health, welfare and safety of student-athletes is not a priority of athletic departments according to Huma and Colter.  In their opinion the establishment of a student-athlete union would ensure this issue remained top-of-mind for every athletic director and university president.

Those on the other side of unionization reiterate the meaning of student-athlete, emphasizing that student precedes athlete.  College athletes’ primary purpose is to work towards attaining a degree while participating in athletic activities.  According to the Ninth Circuit court in California, unlike work-study students whose work is of primary benefit to the university, therefore making them employees, student-athlete participation in football is primarily self-beneficial and only on a limited basis does the institution receive benefits.  That decision was made in April of this year and is currently being appealed to the same court.

As mentioned earlier, the NLRB can make decisions regarding how private schools identify their student-athletes but the landscape for the other 108 public institutions provides for myriad of interpretations.  With varying labor policies spanning the 50 states in the union, some believe determining work guidelines for all will be close to impossible.

Only time will tell what college athletics will look like in the future and whether unionization will be included in that outlook.  Tremendous sums of money have been infused into college athletics recently causing more attention to be paid to how those funds are allocated.  One thing seems to be evident to all involved on either side of the issue, the state of college athletics is on the precipice of change.  What it currently resembles will be different than the form it takes in five to ten years.


 

References:

(2017). Board unanimously decides to decline jurisdiction in Northwestern case.  National Labor Relations Board.  Retrieved from https://www.nlrb.gov/news-outreach/news-story/board-unanimously-decides-decline-jurisdiction-northwestern-case

(2017). Ninth circuit court rules student athletes are not employees: Dawson v. National Collegiate Athletic Association. The National Law Review. http://www.natlawreview.com/article/ninth-circuit-court-rules-student-athletes-are-not-employees-dawson-v-national

Elejalde-Ruiz, A.  (2016).  Northwestern modifies handbook to treat football players like employees.  Chicago Tribune.  Retrieved from http://www.chicagotribune.com/business/ct-northwestern-handbook-nlrb-1012-biz-20161011-story.html

New, J.  (2017). NLRB chips away at NCAA amateurism.  Inside Higher Ed.  Retrieved from https://www.insidehighered.com/news/2017/02/02/nlrb-general-counsel-says-private-college-football-players-are-employees

Puskar, G. (2015). Why can’t college athletes unionize.  L.A. Times.  Retrieved from http://www.latimes.com/opinion/editorials/la-ed-ncaa-20150826-story.html

 

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