On March 24, the National Labor Relations
Board (NLRB) for Region 13 held that student-athletes receiving
scholarships at Northwestern University are "employees"
under Section 2(3) of the National Labor Relations Act.
If upheld on appeal, the ruling will allow
all football players receiving football grant-in-aid scholarships and
not having exhausted their playing eligibility to vote and decide
whether they desire to be represented by the College Athletes Players
Association (CAPA) for purposes of collective bargaining.
The decision in this case applies only to
private institutions such as Northwestern University that fall under
the jurisdiction of the NLRB, but it is probably only a matter of time
before public universities will have to address similar issues under
the laws of their jurisdiction and their respective public employment
These issues give rise to complex legal
questions that will require expertise in numerous legal
specializations, including (but not limited to) federal and state
labor law, education law, employment law, taxation law, workers'
compensation and antitrust law. Title IX issues will also need to be
The purpose of this article is not so much to
discuss the legal issues, but rather to take a look at what some of
the practical implications might be for both coaches and
student-athletes if the unionization of college players ever takes
Student-athlete or employee?
As a starting point, it is probably best to
examine the definition of the term student-athlete. The Northwestern
NLRB decision held that Northwestern scholarship players are not
primarily students who spend only a limited number of hours performing
their athletic duties.
NLRB Regional Director Peter Sung Ohr pointed
out that these players devote 40 to 50 hours per week on
football-related activities while only spending 20 hours per week
attending classes. As such, they are "employees" under the
language of Section 2(3) of the Act. The decision also noted that the
coaches at Northwestern are not part of the academic faculty and that
the scholarship players do not receive academic credit for playing
If scholarship players are successful in
their attempt to unionize, the player-coach relationship would then
become one that would be better described as an employee-player-coach
relationship. The practical implications discussed herein will center
on the purpose for seeking union representation in the first place.
The National Labor Relations Act gives a
union the right to negotiate with an employer concerning wages, hours
and other terms and conditions of employment. An examination of the
Northwestern case will provide some insight into how the player-coach
relationship might be affected should CAPA's efforts to unionize the
players be successful.
Northwestern is already operating under NCAA
restrictions related to the time programs may spend on
athletically-related activities. The NCAA limits countable athletic
related activities (CARA) to 20 hours per week from the first
regular-season game and the final regular-season game, or until the
end of the fall quarter should the school qualify for a bowl game. In
addition, the CARA total cannot exceed four hours per day, and the
players are required to have one day off per week.
The NLRB decision in the Northwestern case
stated that the Northwestern players did in fact devote well over 20
actual hours per week on football-related activities. The decision did
note, however, that this is not a CARA violation because numerous
activities such as travel, mandatory training meetings, voluntary
weight conditioning or strength training, medical check-ins, training
tape review and required attendance at training table are not counted
by the NCAA. Additional CARA time restrictions are also in place
during spring practice and the offseason.
The unionization of players would give a
union the right to address CARA time limitations at the bargaining
table, and this might operate to infringe on a head coach's ability to
schedule the aforementioned activities at his sole discretion even
when he schedules them within the scope of the NCAA's CARA
Remember that the NCAA is a private
association that a university agrees to become a member thereof. From
a collective-bargaining standpoint, it is quite possible that a
conflict might arise where CAPA might seek to bargain a condition of
employment with Northwestern that could give rise to a potential CARA
The fact that this condition of employment is
a mandatory subject of collective bargaining would probably preclude
Northwestern from refusing to negotiate on this point as required by
the federal labor laws.
What is interesting here is that the U.S.
Supreme Court has held on more than one occasion that the NCAA does
not in fact "control" its members. See NCAA v. Tarkanian 488
U.S. 179 (1988) and NCAA v. Smith 525 U.S. 459 (1999). These cases
held that the fact that these institutions make decisions cognizant of
NCAA sanctions does not mean that the NCAA controls them, because they
have the option, albeit unpalatable, of risking sanctions or
voluntarily withdrawing from the NCAA.
It should be added here that this is probably
one of the major reasons that the commissioners of the five most
powerful conferences have made a call for significant changes to the
NCAA's governance structure that would allow the conferences to
Settling rule violations
The Northwestern Athletic Handbook and the
Team Handbook also set forth certain team and athletic department
rules that the football players must abide by. Addressed herein are
special rules related to housing restrictions, outside employment,
social media restrictions and a media interview policy. Other rules
address swearing in public, drug testing, antihazing and antigambling
policies and a dress code policy.
Even player discipline for less egregious
things such as being late to a meeting or failing to weigh-in after a
practice will now fall under the scope of the collective bargaining
agreement (CBA). and this could also possibly complicate a coach's
ability to address these matters. As one can see, there are numerous
terms and conditions of employment that could possibly expand the
administrative duties of a head coach and his administrative team.
An important function of a union involves
servicing the needs of the employees it represents. If an employee
feels that his rights under the CBA have been violated, the union may
intervene on the employee's behalf. A local union may try to settle
these issues informally, but if not successful it may file what is
known as a grievance.
In the college football workplace scenario,
an informal attempt to address these issues could possibly involve a
meeting with the head coach and what is sometimes referred to as an
association representative. In the college football union scenario,
the association representative's role could be filled by a member of
the collective-bargaining unit or better stated one of the members of
the team who is currently on scholarship and has not exhausted his
Having served as an association
representative during my career as an educator, I can state from
experience that this could place a strain on the player-coach
Many college football programs have in place
a leadership council that often consists of freshmen, sophomore,
junior and senior players who are voted on by their teammates. These
players meet with the head coach to discuss any issues that arise on
the team, but the head coach retains the final decision on any matter
that is raised.
Should the players vote to unionize, the
position of association representative might be assumed by one of the
players who serves on the leadership council. The selection of this
representative will, however, take place under specific union rules
and regulations and will not be controlled by the head coach.
The major difference would be that any final
decisions in this regard would no longer rest with the head coach, and
a minor issue such as a dispute regarding a violation of the school's
social media policy could possibly turn into one requiring the use of
the formal grievance process.
It is probably safe to say that other more
serious issues such as the revocation of a scholarship would almost
certainly become the subject of a grievance and would involve not only
the head coach but also other university administrative employees.
Currently, a university can at any time
revoke a player's scholarship for cause as defined under NCAA rules in
the scholarship tender offer signed by the recruit, but with a a union
it would have to be done pursuant to the grievance process as defined
in the CBA. Thus, a coach's decision to revoke a scholarship could
possibly become a much more complex matter.
Under the policies that are now in place in
many universities, a head coach might determine that a scholarship
should be revoked. This decision would then proceed to an
administrative process that will involve an administrative review, a
final determination by the athletic director and an appeal process
that will involve other administrative employees.
The unionization of college football players
would give rise to a much different scenario. Pursuant to the terms of
a formal grievance procedure, the revocation of a scholarship would
involve several different steps, with each step involving higher
levels of management.
If the grievance cannot be settled through
this mechanism, the union may — if the CBA allows — place the
matter before a neutral arbitrator whose decision will be final and
binding upon both parties.
2 groups emerge
A final observation will center on the
possibility of a job action or perhaps even a strike by the players.
In a typical employment scenario when CBA talks fail to lead to a
contract, a union will often resort to certain types of job actions
that it hopes will prompt the employer to rethink its position.
Examples of this might include sick-outs,
working to the contract or picketing where union members will attempt
to expose some negative aspects of the company. Anyone following
Northwestern case is already familiar with the negative publicity in
regard to the money generated by college football for many
universities and the NCAA, and what some believe are the inadequate
benefits that flow to the players.
Player media interview restrictions and team
social media policies might be effective in limiting this type of
player involvement under the current operating conditions, but should
the unionization efforts be successful, the rules would dramatically
change. It will be interesting to see how many athletes would be
willing to publicly criticize their coaches and the university that
The possibility of a strike would also raise
some interesting questions. The NLRB decision in this case held that
walk-on players at Northwestern do not meet the definition of
"employee" for purposes of determining who is eligible to
vote in an election to determine if the employees desire to be
represented by CAPA for collective-bargaining purposes.
The NLRB decision also held that freshmen
football players would not be allowed to vote until they begin to
perform services for the employer. The end result of this legal
classification of athletes is that coaches would now have two distinct
groups of players on their roster.
On one hand, there are those who are
recognized as "employees" for collective-bargaining purposes
and those who are not compensated for their services and can best be
referred to as "student-athletes." In the event of a strike,
how many of these student-athletes would be willing to honor a strike
line and perhaps pass up an opportunity to actually play in a game as
For that matter, how many second- and
third-string employees would also opt to honor a strike line and pass
up an opportunity to play as starters? This scenario alone serves to
illustrate how the unionization of college athletes might serve to
change the definition of the word "team" in the future.
Many of the questions and issues raised
herein are mostly speculative in nature, and only time will tell how
the courts will ultimately rule on these matters. The courts will
resolve the issues from a legal standpoint, but it will be up to
coaches to abide by all the legal directives and still be able to
bring the team together and play to the best of its ability.
Perhaps it will not be as difficult as one
might think, but it is also possible that the coaching profession on
the collegiate level will change in many ways that are not evident
today. My suspicion is that the unionization of college players will
also have a trickle-down effect to the high school level where many
student-athletes could possibly be preparing to sign employment
contracts before they even graduate.
If college athletes have the ability to
market their image for financial gain in some form or another, one can
safely conclude that more high school athletes will want to graduate
early not only to get a jump start on their collegiate playing career
but also to start reaping the benefits associated with playing on the
As such, the role of player agents and
lawyers will also have to be addressed on this level.