College players to vote on union, but face legal challenges

In what is, so far, a battle of dueling legal briefs, college football players who want to unionize and their foe, Northwestern University, filed their written arguments with the National Labor Relations Board.

Meanwhile, the NLRB’s Chicago regional office scheduled the union recognition vote among the team’s members for April 25 on the university’s Evanston, Ill., campus. But the ballots will be impounded until the legal struggle plays itself out.

The case is important for college athletes nationwide.  NLRB Chicago Regional Director Peter Sung Ohr ruled on March 26 that the football team members, who petitioned for the union recognition election with the College Athletes Players Association (CAPA), are employees under labor law and have the right to organize.  Ohr rejected the university’s claim that they are “student-athletes.” 

If the NLRB and federal courts uphold his ruling, college athletes, primarily in football and men’s basketball, at private universities nationwide, could organize.

Key issues in CAPA’s organizing drive among the 85 scholarship football players at Northwestern are medical care payments after traumatic injuries, especially concussions, and establishment of post-scholarship funds to let the players complete their education, rather than cutting them loose to fend for themselves.  The Steel Workers are long-standing backers of CAPA and college players’ right to organize.

“For the football program, the players work long hours year-round – 40 to 60 hours a week from summer training camp through the end of the regular season and many hours during the rest of the calendar year as well,” CAPA’s attorneys told the NLRB.  By contrast, the players spend at most 20 hours weekly in class, and classes are scheduled around football practice.

“In practicing, playing in games, and performing numerous other football duties, players are supervised by Northwestern’s coaching staff, which also enforces rules controlling many aspects of the players’ private lives in furtherance of the  team’s success.   The coaches are not members of the faculty, and teach no courses.  The players receive no academic credit for participation in football, and participation has nothing to do with earning their degrees.

“For their efforts and commitment to the football program, players receive room, board, tuition reimbursement and other benefits, provided to them solely because of their selection by the coaching staff as particularly talented football players, and which they lose” if they leave the team or the coach kicks them off.

“This compensation differs markedly from the financial aid Northwestern provides to other students, who are not required to perform services in return for financial assistance and whose assistance is determined by the student’s financial need and consists in large part of loans rather than grants.  The players’ football services thus have all the hallmarks of an employment relationship.”

Northwestern, backed by the NCAA, which rules college athletics, says the players are “student-athletes” and paints a dire picture of what would happen if players unionize. Ohr rejected its arguments, noting Northwestern alone turned a $9 million profit on football last year, and players had no right to bargain for any of the proceeds. The NCAA collected $841 million last year from member institutions and rights fees.

“The fact that scholarship football athletes are subject to rules and discipline does not make them employees,” the institution declared.  “Northwestern’s scholarship student athletes are primarily students.”

Northwestern repeated the NCAA’s argument that declaring the players “employees” would change the nature of college sports.  It did not mention, as Ohr did, that sports earn millions for the schools, from games, TV and cable revenue and sponsorship deals.