Last week’s National Labor Relations Board ruling giving Northwestern University football players the ability to unionize was a blindside hit to the NCAA, but student athletes have a long way before they’ll start being paid in anything other than scholarships.
The regional NLRB decision that relabeled student athletes as university employees “is just the latest of a series of concerted efforts to expand the NLRB’s role into traditionally non-union areas,” writes John Romeo and James La Rocca for Employment Law Alert. The ruling differentiated the Northwestern University football players from other paid students – like graduate assistants – but the decision leads to more “what ifs” for labor lawyers than answers for “when?”
So is this the end of the student athlete? Not exactly. Northwestern University is already in the process of appealing the decision, and the NCAA is speculating that this will end up before the Supreme Court. But any immediate final ruling will only directly affect private institutions. Out of the 120 NCAA Division I football programs, only 16 are at private institutions, and public schools are the majority in other division one sports, too. It’s probably too early for public universities to start planning their own players union. Tim Garrett of Tennessee Labor Talk explains that
most big time athletic programs are state institutions, which may or may not be subject to the [National Labor Relations Act]. The bargaining rights of state employees are determined not by the federal law but rather by state law. Some states do not allow any bargaining, or only limited bargaining for public sector employees (think Wisconsin in the news recently). In either event, a state’s legislature could pass a law disallowing bargaining by student-athletes, or excluding them based on a finding that they are primarily students, not employees. A complex “patchwork” of varying bargaining rights for student-athletes could result.
While any NLRB decision will not give public school students the right to a union or not, it could potentially grant student athletes back pay, insurance and other benefits, regardless of what school they played for, writes Brennan Bolt in Labor Relations Today.
Moreover, student-athletes could become subject to state unemployment insurance laws. The institution (public or private) could be liable for years’ worth of unpaid contributions. If a student-athlete is cut from his school’s football team and was being paid wages, the student-athlete arguably would be eligible to receive unemployment benefits. More importantly, however, is the question of whether such employee/athletes would be eligible for workers’ compensation benefits. In a sport as violent and injury-filled as college football, it is foreseeable that workers’ compensation awards would be granted on a regular basis, which could become quite costly for a university.
Complicating matters further is that the schools and athletes will not only have to contend with federal labor and union regulations but also NCAA rules, university rules and the general limitations of college experience. The initial regional NLRB ruling was a boost for the College Athletes Players Association, which represents the Northwestern players, but lawyer Bradford Livingston for the Employer Labor Relations Blog calls the decision a false start.
Under the NLRA, employees have the right to bargain over “wages, hours, and other terms and conditions of employment.” … With college football players, little of that remains true.Would a union be able to bargain over whether seniority prevails and upperclassmen are entitled to start before freshmen or sophomores? Like the equalization of overtime contained in many labor contracts, might a union bargain over equal playing time for all? Could a union negotiate a process to establish who plays what position, which players should get a starting role, and how and to whom to distribute carries and passes? Could a quarterback face internal union discipline for calling an audible and depriving a wide receiver of the pass that should have been thrown to him? Would there be a grievance procedure and binding arbitration for a player who was deprived of his contractual playing time?
It’ll be months before Northwestern players can even schedule their first union meeting, but the NLRB’s decision isn’t so much shocking as a step forward in an issue that students have been pushing for years.