Now that the Final Four is set and many a bracket has been busted, it seems appropriate that ZRFM’s Local Government Law Bulletin would offer a brief commentary on a recent development impacting college sports (even if it has little to do with local government!): College football players can now vote to unionize.   Of course, in light of setbacks to organized labor in the last few years, it is no surprise that organized labor is setting its sights on untapped markets.

In January 2013, Steve Greenhouse of the New York Times reported that the national share of workers in unions fell to 11.3 percent, a 97-year low.  His report cited numbers compiled by the Bureau of Labor Statistics that found the union members fell by 400,000 in 2012 even though employment had risen by 2.4 million.  Factors for this decline included new laws in Wisconsin, Michigan and Indiana (what about Illinois?) that lessened the power of unions as well as the continued expansion of manufacturers in nonunion states.  An added component for this decline was the growth of sectors where unions do not play a significant role such as retail and restaurants.

Just this past February, the nation witnessed the defeat of the United Auto Workers union at a Volkswagen Tennessee plant where employees voted against the union’s organizing efforts, even though it had the support of management.  According to Neal E. Boudette of the Wall Street Journal, this loss “raised questions about the future of a union that has for years suffered from declining membership and influence.”  Admittedly, the United Auto Workers’ loss occurred in the South, an area where anti-union sentiments run strong.

But now, the United Steelworkers union (“USW”) recently scored a victory, albeit indirectly, by supporting the College Athletes Players Association (“CAPA”) and its petition on behalf of Northwestern University football players.  According to CAPA’s website, its objective is to secure the rights of players to collectively bargain and obtain guaranteed coverage for sports-related medical expenses for current and former players, minimize the risk of traumatic brain injury and establish return to play protocols, improve graduation rates and implement due-process rights with respect to discipline.  Peter Sung Ohr, the Regional Director for Region 13 of the National Labor Relations Board, issued a Decision and Direction of Election on the football players’ petition.  In his decision, Ohr found that scholarship football players at Northwestern are “employees” within the meaning of the National Labor Relations Act and eligible for union representation and can be considered an “appropriate bargaining unit.”  The decision was hailed by USW’s President Leo W. Gerard as “a tremendous victory, not just for athletes at Northwestern, but ultimately for all college athletes, many of whom generate tens of millions of dollars each year for their institutions, yet still are in constant danger of being out on the streets with one accident or injury.”  Gerard vowed to continue USW’s support of CAPA and its “struggle.”

As with all labor issues, it came down to money and control.  Ohr’s decision highlighted revenues of approximately $235 million for Northwestern over a nine-year period.  The players are granted scholarships to attend Northwestern, room and board, at a value of up to $76,000.  The decision also cited the manner in which Northwestern exercises control over the football players.  The players’ schedule, heavily regulated, includes 50 to 60 hours of football-related activities.  Players are restricted in their choice of housing, whether they drive their own vehicles, any outside employment opportunities and traveling options.  They are also restricted in their use of social media.  Because of their football-related obligations, they are often unable to take desired courses of study due to scheduling conflicts.  Essentially, Ohr found that players are not students, their football activities have nothing to do with their studies, there is no connection between their athletic endeavors and academics, and their scholarships were strictly for football, not academics.

For the moment, the decision’s impact is narrow.  It applies to private universities and their revenue generating scholarship athletes.  Public institutions, on the other hand, are governed by state law.  Nationwide, 24 states are “right-to-work” jurisdictions making the path to unionizing extremely difficult, especially in the South.   Ultimately, many questions will need to be answered including how non-revenue producing sports will be treated, particularly the women’s teams in light of the Title IX gender equality requirements.  There are also tax ramifications of scholarships being deemed “income” and the impact that it will have on athletes.  As employees, athletes will be able to pursue benefits afforded pursuant to workers’ compensation laws, especially those athletes whose “careers” are cut short by injury.  And then, there will be an impact on college recruitment efforts—what university has the best union contract and related benefits!   States will certainly monitor the progress of the Northwestern football players’ petition and will likely craft legislation applicable to their public universities.  Current and future college athletes will wait and see how this unfolds.  And, of course, organized labor will continue to support the college athletes’ “struggle” and its efforts to tap into this vast source of dues and membership.

Most importantly, the viability of the term “student athlete” will be called into question and the world of college sports as we know it will cease to exist.  Just imagine: What if March Madness were suspended as a result of a players’ strike?  No matter—Opening Day would still be around the corner.  But, for Cubs fans, there is always next year…

Carlos S. Arevalo

Author: Carlos S. Arévalo