Union Representation: Coming to a Football Stadium Near You?

Friday, January 31, 2014

As everyone readies themselves for this weekend's Super Bowl, where one of the principal storylines has been the potential for snowy conditions, a much more serious storm emerged this week within the world of college football.

On January 28, a group of football players from Northwestern University filed a petition with the Chicago office of the National Labor Relations Board (NLRB) seeking union representation.  They have formally requested that the College Athlete Players Association (CAPA) be recognized as their exclusive bargaining agent.  CAPA's election petition represents the first step in the union certification  process.  If the NLRB determines that the players have the right to unionize, a sea of change in the relationship between universities, student-athletes and the NCAA will follow.

To have the NLRB consider a petition to be unionized, at least 30 percent of the members of a potential bargaining unit must sign and submit union cards.  By filing signed cards with the NLRB on behalf of the Northwestern players, CAPA triggered a process that will commence at the regional level of the NLRB and almost certainly wind up in federal court.  Initially, one of the pivotal legal issues will involve whether scholarship athletes can be classified as "employees" under the National Labor Relations Act, a definition that has evolved over time through the holdings set forth in many court decisions.

For its part, Northwestern's administration draws a sharp distinction between a wage-earning employee and a student-athlete responsible for paying tuition for his or her education.  A series of court decisions analyzing whether student athletes were employees entitled to medical benefits lends credence to the University's position.  Not surprisingly, the NCAA's legal team has also argued that the matter is cut and dried:

  • This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize.
  • Many student athletes are provided scholarships and many other benefits for their participation. There is no employment relationship between the NCAA, its affiliated institutions or student-athletes.
  • 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.

Initially, the unionization push was the brainchild of Northwestern quarterback Kain Colter, who reached out to the organization National College Players Association (NCPA) for help.  Colter became a leading voice in regular NCPA-organized discussions among college players from around the country.  Interestingly enough, Colter went public with his concerns in Northwestern's game last season against the University of Maine Black Bears.  That weekend, he raised awareness for what was called the "All Players United" movement by joining with teammates and athletes from other schools who wore wristbands and towels that read "APU."

Developments in this high profile dispute will certainly be worth following.  If the players are able to establish that the tremendous degree of control exercised over their athletic lives by their colleges renders them akin to employees, the color commentary we hear on game day may eventually encompass discussions about collective bargaining, player grievances and wage scales.