Football players at Northwestern University took the first steps to create a formal players union last week, raising major labor questions that go beyond whether or not college athletes are employees who should be paid. 

Credit - pennstatenews
Credit – pennstatenews

In this labor law bombshell, the National College Players Association filed a petition to unionize on behalf of Northwestern football players with the National Labor Relations Board’s Chicago regional office.

In order to unionize, the NLRB needs to label athletes as school employees, and according to labor lawyers, there is little change of that happening.

“While this case certainly poses an interesting legal question, it is unlikely that the students will prevail.  Given the historical designation of college athletes as students and the NLRB’s stringent criteria for ’employee’ status, it does not seem likely that the Northwestern football team will be recognized as a union,” said employment lawyer Anne Marie Prack of Squire Sanders.

NCAA rules prevent student athletes being paid a salary. In an official statement, Chief Legal Officer Donald Remy said that a union would undermine students’ education and that “student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act. We are confident the National Labor Relations Board will find in our favor, as there is no right to organize student-athletes.”

While the hearing before the NLRB won’t be for some weeks, the students have a tough legal battle ahead of them. They have already overcome the first hurdle by having at least 30 percent of players wanting union representation, and ESPN reported that “an overwhelming majority” of the 85 scholarships players signed union cards.

But player interest isn’t enough, according to Prack, because the NLRB will have to determine how much control the university have over their players before they can officially be considered “employees.”

“The NLRB will look at the effect of athletics on the Northwestern football players’ academic choices, the number of hours a week and number of hours a year that are spent on football and football related activities, and the economic relationship between the players and the school, including the award and revocation of scholarship money,” said Prack. ” The football players’ argument will be that football is the primary element of their college experience and that football controls and dominates their college experience – all other activities and involvements, including academics, are ancillary.”

Even though Colter told ESPN that there is little opportunity for players to attend academic events over practice or games, it will be difficult for them to prove that football is their primary role in this novel petition. There is also little precedent for the NLRB to make a favorable decision for the players. In a nearly similar situation in 2004, the NLRB decided that graduate student assistants at Brown University could not be considered university employees because the “primary role of teacher assistants was that of being students; therefore, they do not have the right to unionize” after examining what kind of work they do, their relationship with supervisors and what financial support they receive, said Prack.

While this is the first time the NLRB received a petition from football players, it wasn’t a sudden decision on the part of the students. The NCPA formed in the late 1990s and last football season, some players wore “APU” (All Players United) wristbands during games.

“This is a perfect storm. I don’t think it’s coincidental,” said Tyrone Thomas, Of Counsel at Mintz Levin who has advised universities on NCAA compliance.

He explained that the petition comes after EA Sports settled in 2013 with NCAA student athletes who sued for illegal use of their likeness in video games and nearly a year and a half after the NCAA hired a chief medical officer.

The focus of the union, according to Northwestern quarterback and student Kain Colter, isn’t to force universities to pay players but to improve graduation rates and make sure that schools provide players with medical coverage.

With sports injuries and concussions dominating headlines, Gregg Clifton, co-chair of Collegiate and Professional Sports Industry Group at Jackson Lewis, called the petition “the natural outgrowth that athletes are seeking to have their voices heard.”

“I think that there’s just of number of these issues that have risen to the forefront here as the issues on all levels of sports – concussion issues and injury issues – have really become paramount from the junior leagues with young kid up to the professional ranks about providing safety and protecting these athletes,” continued Clifton.

Clifton also added juniors and seniors at Northwestern will likely graduate before they can be represented by the players union because this issue will inevitably end up before the courts with of the numerous entities it involves. Everyone interviewed said that this could end up in the court system for years.

“This is not your typical NLRB case. This is a case where a group of people are obviously doing something that has a lot of financial implications,” said Thomas. “This is actually a bombshell for [the NCAA and member schools]. If you actually categorize student athletes as employees, you have opened yourself up to a whole realm of federal regulations that you didn’t have previously. There are not only the financial issues because you have to follow all the wage statutes, but you’re also going to have all the other employment rules that come into play. You’re going to have FICA for the student athletes. You’re going to be subject to the discrimination rules.”

Thomas added that it’s likely that member schools would seek their own litigation.

It would make sense that Division I football and basketball players would seek compensation as these sports can be huge revenue drivers for their institutions, but the issue becomes muddled if other student athletes were to seek unionization.

“You wonder if they thought out what is could really mean, particularly for non-revenue sports. If Division I athletes are termed to be employees, what happens to track? What happens to swimming – the sports that don’t bring in any money? It can easily become prohibitively expensive for universities,” said Cary Burke, labor and employment attorney at McKenna Long & Aldridge.

Even though Northwestern University is a private school and the NLRB only has jurisdiction over the private sector. a ruling in favor of a players union could also be expensive for public universities. which are the majority of NCAA Division I schools.

“Public universities are subject to state-by-state labor laws. The problem is that if the board goes a certain direction, the public schools will have to follow suit from a practical perspective,” says Burke. “If private schools start paying their players, these public universities will have to do the same thing just to keep up with the Joneses.”

So should universities start preparing their legal team? Probably not yet.

“Regardless of which way [the hearing] goes, everyone is almost sure that it’ll be appealed to the full National Labor Relations Board in D.C. They’ll make a decision and whatever that decision is my guess is that it’ll go to the court of appeals. If they want to keep fighting, it’ll get caught up in litigation and quite frankly it could go before the Supreme Court. It’s really a novel idea – athletes as employees – that’s really not covered in the current board service prudent,” said Burke.