If you could ask them if they ever thought college football players should have the right to join unions and bargain with their universities, chances are all three would have had a good laugh. Of course, in their day the revenue stream from college football was not measured in billions of dollars and the concerns of college athletes were not what they are today. Still, it is interesting to consider what these three might make of the recent decision by the National Labor Relations Board (NLRB) Chicago Regional Director that college football players are “employees” with the right to unionize?
In January 2014 the College Athletes Players Association (CAPA) filed a petition with the NLRB seeking the right to represent college football players at Northwestern University for collective bargaining. It seems a primary objective for CAPA was to draw attention to the fact that student athletes devote substantial time to their athletic obligations and to argue the need for fair compensation, including medical insurance, and greater attention to safety concerns. Of course, the law of collective bargaining protects the rights of employees only. The University objected to the petition on the grounds that college football players are student athletes, not employees.
Last week in a decision that surprised many in the labor law community, the NLRB Regional Director in Chicago ruled that Northwestern scholarship football players are employees and can vote for unionization. The NLRB relied on the common law definition of employee: essentially a person who contracts to provide services in exchange for compensation and who is subject to the employer’s control. The NLRB has directed an election in which the players will be able to vote for or against unionization. If the players vote to unionize, the University will have the legal duty to bargain with CAPA over wages, hours and other terms and conditions of “employment.” The University will certainly appeal the Regional Director’s decision and will likely refuse to bargain with CAPA while the legal appeals are exhausted.
What Does it Mean?
Most of the broader implications of this case are limited to the academic community. Arguments over the definition of “employee” outside the University community are more rare and often focus on the question of whether a given group of persons are independent contractors, rather than employees. Nevertheless, this case will be very interesting to follow. If CAPA is successful in the long run, what will be the “terms and conditions of employment” over which it and the University will bargain? Are the academic scholarships afforded to the players to be considered their “wages” subject to bargaining? Are football players therefore to be taxed on the value of their scholarships? And what about the right of employees to strike if bargaining breaks down? Will the universities hire “replacement workers” if football players go on strike? Are the walk-on members of the football team – those without football scholarships – who the NLRB said were not “employees” under the NLRA now to be considered unpaid interns? And, finally, as my colleague Ann Caresani asks are there even unanticipated consequences under the Affordable Care Act?
Although these questions may sound outlandish, they illustrate some of the real implications if this decision stands up to appeal. Perhaps what is needed is a little common sense from the past.
Where are you now, Knute, Woody and Jimmy? (Especially you, Jimmy.)