248-409-1900 dburke@mi-worklaw.com

By: Dan Cohen – 5/13/14

          I recently attended a labor and employment conference in Philadelphia along with about 40 other Worklaw® Network attorneys from around the U.S., Canada and Europe. A distinguished panel was assembled to discuss the aftermath of the NLRB’s Northwestern University decision: three representatives from colleges, an NLRB Regional attorney and retired NFL coach, Dick Vermeil. You will recall from my March 17th BLawg post that the NLRB Regional Director in Chicago held that football players at Northwestern University were employees, who could vote in a union election. With one exception (and I’ll give you one guess who), the panelists disagreed with the decision. While I personally agree with the panelists who commented that the value of a full scholarship to Northwestern ($76,000 annually), including the benefits and the opportunities for the players − should be more than adequate for the student athlete; however, I want to focus on one panelist’s comment that the decision lacks common sense and logic.

          There is no better way to do this than by exploring the implications of the decision, assuming it stands. Some of you might think this is far-fetched, but given the underlying premise that scholar athletes are actually employees of the university, I beg to differ.

  • Because the appeal process takes time, many if not all of the players who cast their votes will be gone by the time the union could become certified as the bargaining representative of the football players. Kain Colter , the poster child of the College Athletics Players’ Association, has completed his football career at Northwestern. His former teammates could be done with football as well. To the extent a college athlete is an employee, he/she is more akin to a “temporary” worker. While unions can organize “temps,” they have not historically sought to represent “temps” because of the temporary nature of the work;
  • Northwestern would have its hands tied at the bargaining table since the NCAA currently prohibits pay to college athletes. Quite frankly, if the union made economic proposals that included compensation for the football players, l think Northwestern would be within its right to say “we wish we could agree on a compensation plan, but the last time we looked, the NCAA prohibited us from paying scholar athletes”;
  • As it has done in the NFL, the Union could propose practice time limitations and limits on how many hours the team can practice in full pads. The difference is that in the NFL, all 32 teams play by the same rules. So, if the Seattle Seahawks can only practice 10 hours a week, the Detroit Lions must limit their practice time to 10 hours as well; even though we all know the Lions need more practice than the Seahawks. Northwestern could find itself at a competitive disadvantage since its chief rival, Illinois, and the other Big Ten schools, would not have to play by the same rules;
  • Since Unions tend to propose and insist on multiple job classifications, I could envision separate classifications for skilled players and lineman. There could even be offensive and defensive classifications. Will Northwestern receive a grievance from a receiver or a tight end if it runs a tackle eligible play or if it has someone play both ways?
  • The Regional Attorney for the NLRB found that coaches exercise a lot of control over the players at Northwestern, which convinced him they were properly categorized as employees. It sure sounds like the Board would find members of the band, cheerleaders, and most every other college athlete to be employees. Let’s face it, in addition to following the rules, members of the marching band also practice, travel to games, and must meet certain academic standards. At some universities, there is competition within the marching band in terms of who gets to march out on the field as opposed to just sitting in the stands. The band director probably makes that decision. How is this any different? And, what about students on academic scholarships? Might they also be employees using the NLRB’s logic?
  • As employees, colleges would need to cover the players on their workers compensation policies, would pay unemployment and other taxes, and could be required to pay overtime. The student athletes would likely be taxed on the value of their football scholarships too. Under the Affordable Care Act, the University might even be required to provide affordable health care to the scholar athletes to avoid pay or play penalties. My guess is that tuition hikes will be necessary to cover all these additional expenses.

          What about protected concerted activity? Imagine the wide receivers collectively refusing to run pass routes over the middle because of “safety” concerns (no pun intended). Most coaches would bench a wide receiver or even send him to the showers for doing this. Some might suspend or even throw protesting wide receivers off the team. By definition, this sounds a lot like protected concerted activity to me. Of course, with the NLRB’s recent history of regulating the non-union workplace, a Board Charge technically could be filed by a player regardless of whether the Union was on the scene or not.

          With the upcoming legal debates surrounding the wonderful game of college football that I love, it is my opinion that we need a dose of common sense in order to maintain the integrity of the game.