Northwestern football players gain historic opening victory to unionize as employees
The National Labor Relations Board handed a historic opening-round victory for athletes to unionize.
In a ruling today out of Chicago, NLRB regional director Peter Sung Ohr determined that Northwestern football players are employees of the university and free to unionize. Northwestern plans to appeal the ruling to the NLRB in Washington D.C, underscoring a long road ahead for unions to become a reality in college sports.
The NLRB decision came to two major conclusions: Athletic scholarships equate to compensation in exchange for working for the school, and coaches have strict control over college athletes.
“Players receiving scholarships to perform football-related services for the Employer under a contract for hire in return for compensation are subject to the Employer’s control and are therefore employees within the meaning of the Act,” Ohr wrote. (Read the entire ruling at this link.)
Ohr said the first factor considered was a Brown University case involving graduate students and that their employment status was contingent on their enrollment. The NLRB found those graduate students were “primarily students,” but Ohr believes athletes are different.
“In contrast, in the instant case it cannot be said the Employer’s scholarship players are ‘primarily students,'” Ohr wrote. “The players spend 50 to 60 hours per week on their football duties during a one-month training camp prior to the start of the academic year and an additional 40 to 50 hours per week on those duties during the three or four month football season. Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies.”
While Northwestern’s football coaches and the university “appear to value the players’ academic education, it is clear that the players are controlled to such a degree that it does impact their academic pursuits to a certain extent,” Ohr wrote.
Among the factors cited by the NLRB of universities’ restrictions on players: living arrangements, outside employment, use of personal vehicles, travel off campus, posting items on the Internet, speaking to the media, drug and alcohol use, and engaging in gambling.
“The fact that some of these rules are put in place to protect the players and the Employer from running afoul of NCAA rules does not detract from the amount of control the coaches exert over the players’ daily lives,” Ohr wrote.
The NLRB concluded that it is “clear” that the scholarships players receive are in exchange for athletic services being performed. The ruling noted that Northwestern, unlike some other universities, switched in recent years from one-year renewable scholarships to four-year scholarships that could lessen the pressure to preform on the field.
“But the fact remains that the Head Coach of the football team, in consultation with the athletic department, can immediately reduce or cancel the players’ scholarship for a variety of reasons,” Ohr wrote. “Indeed, the scholarship is clearly tied to the player’s performance of athletic services as evidenced by the fact that scholarships can be immediately canceled if the player voluntarily withdraws from the team or abuses team rules.”
Only two Northwestern players lost their scholarships during the past five years, but “the threat nevertheless hangs over the entire team and provides a powerful incentive for them to attend practices and games, as well as abide by all the rules they are subject to,” Ohr wrote.
The efforts to unionize have been led by Ramogi Huma, co-founder of the College Athletes Players Association and a former UCLA football player.
“The NCAA invented the term student-athlete to prevent a ruling like this today,” Huma said. “We won every argument and Northwestern lost every argument. Right now, there is a legal ruling that athletes at a private school are employees. It sets a precedent across the country.”
The next step is an election by Northwestern football players within the next 30 days of whether to form a union, which is a formality given that ex-Northwestern quarterback Kain Colter — another leader of this player movement — has enough votes. Huma said the players are well aware the legal process could take a while.
“We expect we will win the appeal in D.C., and Northwestern has options available to appeal to the federal court systems and could drag this out for a while,” Huma said. “The players may never benefit from collective bargaining but they created a path for future players.”
The Northwestern case affects only private universities. Any attempt by players to form a union at a public school would be governed by each state’s specific labor laws.
Huma, who has been an advocate for college players’ rights for more than a decade, said it wasn’t until a year ago that he started seriously considering forming a union. He attributed the tipping point to being excluded from talking about concussions to media at the 2013 BCS Championship Game hotel in Miami.
“I kept thinking a lawsuit or settlement would give players a seat at the table, and it never happened,” Huma said. “The only way to gain protections is through collective bargaining.”
On Sunday, NCAA President Mark Emmert appeared on a panel on “Meet the Press” that discussed compensating college athletes. Huma said he was initially contacted by “Meet the Press” to possibly be included and then was told he wasn’t needed.
“That disappointed me because we had a lot to bring to the table,” said Huma, who instead appeared on a competing Sunday morning show on ABC.
Also today, lawyers for the Ed O’Bannon antitrust plaintiffs filed a request to add the NLRB ruling to their case. A judge in the case recently ordered the sides to have settlement talks prior to the June 9 trial.
Sonny Vaccaro, a longtime critic of the NCAA, said the NLRB ruling is a “giant step” for athletes’ rights.
“It’s unbelievable,” Vaccaro said. “I’m so proud and happy for the kids of this generation. I’m ecstatic what’s happening. (Ed) O’Bannon is in court, we have the first state to unionize, we have two other (antitrust) lawsuits coming at them plus concussions and the NCAA is sticking to amateurism. Let the courts decide.”
In a written statement, NCAA chief legal officer Donald Remy said the association strongly disagrees that college athletes are employees.
“Over the last three years, our member colleges and universities have worked hard to re-evaluate the current rules,” Remy said. “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.”
This story has been republished with permission by Jon Solomon. The original article can be found by clicking here.