How Northwestern Football Players' Right to Unionize Could Change College Sports

Northwestern football players ruled employees of the school with the right to bargain collectively. Sports attorney Darren Heitner explores the implications.

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Remember this date: March 26, 2014. It is the day that might mark the end of the National Collegiate Athletic Association's amateurism model as we know it.

On that date, Peter Sung Ohr, Regional Director of the National Labor Relations Board—overseeing a case brought by Northwestern University football players seeking the right to unionize and collectively bargain for benefits—ruled that those players are employees of the school, and thus entitled to unionize. The ruling clears the path for an election of the first labor union in the history of college sports.

The dispute is far from settled, however. Northwestern has until April 9 to appeal Ohr's decision, and has publicly stated it will do so. The appeal will be heard by the NLRB in Washington. Labor experts do not expect a union election will take place until after the full board has made its determination. If the board in Washington upholds Ohr's decision, the school could appeal to the federal appellate court and eventually the U.S. Supreme Court.

One of the core reasons behind Ohr's ruling—and the biggest potential game-changer in the case—was his determination that Northwestern football players are employees of the university, and not amateur student-athletes. Ohr based this determination on his finding that the athletes have a strong economic relationship with the university, because Northwestern plays a heavy hand in controlling the players' daily activities and compensates them in the form of scholarships. Specifically, Ohr stated, "[the] record makes clear that the Employer's [Northwestern'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 also noted that football players are subject to special rules and regulations the general student population does not have to abide by.

The number of hours football players put into preparing for opponents each week was another key factor. Kain Colter, the ex-Northwestern quarterback who presented the case for unionization at the regional NLRB hearings in February, testified he spent 40 to 50 hours a week on football during the season, which Ohr noted "is also many more hours than the players spend on their studies."

The ruling is not set in stone. A lengthy appeals process is likely. Until a final decision is made, a plethora of questions remain regarding the effects of this ruling. We break them down for you here.

What does Ohr's decision mean for Northwestern and its football team?

According to Ohr, from this point on, those who play for Northwestern's football team are no longer considered student-athletes. Instead, they are categorized as employees of the university. Assuming the ruling is upheld, and the union election succeeds without opposition, players will have an opportunity to collectively bargain certain terms of their employment with the university.

Some of the demands already sought include: financial coverage for current and former players who incur sports-related medical expenses; placement of independent concussion experts on the sidelines during games; creation of an educational trust fund to assist former players in their pursuit of graduation after their playing days are over; securing players' due process rights; and "cost of attendance" stipends that would allow players to be compensated for commercial sponsorships "consistent with evolving NCAA regulations."

These are only the primary goals of the College Athletes Players Association (CAPA), the union founded by former UCLA linebacker Ramogi Huma, which has joined forces with Colter to lead the charge for unionization at Northwestern. Other rights and benefits CAPA feels are due to players will most likely be discussed during collective bargaining.

"The determination that the school's football players are employees under the NLRA is potentially groundbreaking," said labor and employment attorney Jon Israel, who previously served as general counsel for the NBA and is now a partner at Foley & Lardner. "[It] is not difficult to conceive of a larger impact. Indeed, opportunistic plaintiffs' lawyers already may‏ be readying class/collective actions and other lawsuits that would seek to extend the 'employee' determination to other legal contexts—e.g., unpaid wage claims under federal and state laws."

What does Ohr's decision mean for other schools?

While Ohr's decision technically only applies to Northwestern, it could have a widespread effect on other schools that abide by the NCAA's rules and regulations. Football players at other universities could use Ohr's decision as precedent to assert they also have the right to unionize and enter into collective bargaining with their respective schools.

Israel is not so certain the ruling will have a sweeping effect. He said, "This decision could mean nothing for other schools, as there is no certainty that union organizing elsewhere is happening now or will happen as a result of this decision, which still has some distance to cover until final resolution. If schools are fearful of this result, you might see facts changing on the ground, like schools retooling their programs and the way they manage player academic and athletic life. For example, schools might make changes that would increase their chances of proving that their players are not employees under the tests outlined in the Regional Director's decision."

The NLRB does not have jurisdiction over public universities. Therefore, players at public universities hoping to unionize would have to seek recourse through their respective state's labor laws. Currently, 24 states are governed by right-to-work statutes, which prohibit agreements between labor unions and employees governing the ability of a union to require employee membership and enforce payment of union dues or fees as a condition of employment. As a result, state employees (i.e., hypothetically speaking, football players who compete for public universities) are severely limited in their opportunities to collectively bargain.

What's the NCAA saying about the decision?

While not a party to the NLRB proceedings, the NCAA issued a statement on its official website expressing severe disappointment and strong disagreement with Ohr's decision. Since the NCAA is the governing body for athletics in schools that will be affected by the NLRB's decision, it follows that a significant number of its rules and regulations would have to be overhauled if the decision is upheld. Additionally, the NCAA may have to change the way it contracts with third parties as it relates to college athletes. For example, if players were to receive compensation from the revenue that results from the broadcast of their games, a large sum of money would be diverted from the NCAA and into the hands of schools to be dispersed to players. For this and other reasons, the NCAA will undoubtedly play an active role in future proceedings to get the decision overturned.

What does Ohr's decision mean for student-athletes in other sports?

It's not yet clear. One major question left unresolved in Ohr's decision is what the NLRB considers a "bargaining unit." Typically, a bargaining unit is defined as a group of employees who have identifiable and common interests and are collectively represented by a single labor union in collective bargaining. As Ohr's decision currently stands, it can be assumed at the very least that the NLRB considers Northwestern football players to be a part of the applicable bargaining unit. As a result, college players in other sports would have to initiate their own path to unionization.

However, if this decision is meant to have broader application, it could be construed and encompassing all Northwestern athletes in its definition of a bargaining unit.

"At Northwestern, you would think that men's basketball would be next to unionize, as it presumably generates significant revenue," Israel said. "But why stop there? Players in other sports could have a union option—if they receive aid, aren't they 'compensated' for spending many hours on their extracurricular activity of choice under a set of onerous rules relating to oversight and conduct? If this case or any of the other legal challenges to the current system divert money away from the schools to players or the unions, it could impact other sports, which purportedly are subsidized by the 'big revenue' sports [like football and basketball]. That could trigger Title IX issues if women's programs are reduced or negatively impacted."

Title IX states that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." So if a Northwestern football player receives benefits not available to female athletes as a result of collective bargaining, a Title IX challenge could be brought against the school.

How might Ohr's decision affect college recruiting?

Again, Ohr's decision has no effect or precedential value regarding athletes who attend public universities and their ability to unionize. Assuming the decision withstands the multiple appeals it is sure to face, only players at private institutions will be able to assert a right to unionize. Accordingly, a recruiting tool that only private universities will be able to use is the ability to offer recruits employee status. Incorporated within the offer of employee status would be the ability for the recruit to be a part of a union and receive compensation and additional benefits collectively bargained for at that school that would not be available at public universities.

This result can be viewed in a number of ways:

  1. As an unfair recruiting advantage provided to private universities in order to entice top talent.
  2. As a technique used to even the playing field among collegiate competitors.
  3. As an impediment to college athletes performing for private universities. As a public university, Florida State University would not be able to offer recruits the same perks as Northwestern. However, as it currently stands, Northwestern is not able to offer recruits the same media exposure that comes from being broadcasted on national TV on an almost weekly basis.

The tax and benefit consequences attached to classifying college athletes as employees have not yet been determined. If college athletes have to pay taxes on their scholarships, it may dissuade them from attending private universities that have established athlete unions. Further, those private universities forced to bargain with players may be obligated to cover additional costs for benefits typically associated with employment relationships.

Thus, any effect Ohr's decision would have on the future of recruiting would be extremely subjective, largely dependent on the wishes and goals of the athlete being recruited. If a recruit goes into the process believing college football will be the apex of his playing career, he may feel playing for a university with a union will better equip him for his future than playing at a media powerhouse like Florida State or the University of Texas. However, if a private school, such as the University of Southern California, can offer a recruit both the ability to be a part of a union and national exposure, or if Northwestern is able to use this as a recruiting tool to attract five-star recruits, that in turn enables the university to attract national attention, then Ohr's decision may be viewed as giving a select group of schools the extra ammunition needed to create a perennial powerhouse.

So what happens next with the case?

Northwestern University has already expressed its intention to appeal to the NLRB and the federal appellate or even U.S. Supreme Court, if necessary. On appeal, the NLRB will review the following:

  1. Whether the prior Board decision was based on a substantial question of law and guided by NLRB precedent
  2. Whether Ohr's decision was clearly erroneous in light of NLRB precedent or the evidence presented
  3. Whether the prior Board hearing suffered from prejudicial error
  4. Any other compelling reasons presented for reconsidering Ohr's decision

In the event the NLRB in Washington affirms Ohr's decision, the next step for Colter's former teammates would be to hold an election. Colter is on record stating he believes the majority of Northwestern football players would vote to unionize. However, if the NLRB defines "bargaining unit" to include all Northwestern athletes, the Board would have to confirm that at least 30 percent of the bargaining unit supports unionization. Then, the union would be able to enter into collective bargaining to negotiate compensation and benefits for its "new" employees, such as different types of insurance and the other goals promulgated by CAPA. Unfortunately, as a result of the additional benefits that may be bestowed upon Northwestern football players, the school, and other schools in a similar position, may be forced to restructure how it administers funds to its respective sports.

The NLRB has reversed itself in the past regarding whether certain types of workers can unionize. One well-known example is the Board's reversal of a decision concerning graduate students' ability to unionize. Expect a multitude of college athletes at other private universities to seek unionization before the NLRB has the opportunity to change course.


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