Yesterday, the National Labor Relations Board in Chicago ruled that Northwestern University football players, under federal law, qualify as employees and therefore are entitled to form a union. The players, with the help of an organization called the College Athletes Players Association, filed the suit only two months ago. Northwestern has already stated its intent to appeal the decision.
The decision obviously has massive implications for the NCAA and what it means to be a "student athlete." The wording in the ruling (PDF), very clearly, says that football players are recruited first and foremost to play football, are then given compensation for playing football (scholarships), and therefore fit the definition of "employees." With one antitrust lawsuit against the NCAA set to go to trial this summer and another that was only filed a couple of weeks ago, college sports as currently constructed don't appear to be long for this world. The NLRB ruling is the biggest and loudest blow to the collegiate-athletic infrastructure we've seen, but, for now, the NCAA remains standing.
To get a sense of just how wobbly that stance is and an idea of where both sides will look to as they move forward, I exchanged a few emails with Joel Maxcy, a sports economist and professor at Temple University.
Over the past few years, there were a couple of events—the Ed O'Bannon case; the big story in The Atlantic; the Jeffrey Kessler lawsuit—which sort of suggested, "Whoa, college sports could be changing," but then nothing would immediately change and buzz would temporarily die down. With the NLRB ruling, though, it seems like the first time where lots of people are actually saying, "Whoa, college sports are going to change."
It’s especially significant because it is the first actual legal decision recognizing college athletes’ rights as employees and more generally acknowledging that athletes own the property right to their services. This was the first NLRB decision on college athletes’ status, but in other court cases judges have consistently accepted the NCAA’s premise of athletes as students and not employees. The Kessler filing and O’Bannon case are important, especially if the rulings eventually favor the plaintiffs, but those have not yet proceeded to a decision. Branch’s Atlantic piece and 2013 film (Schooled) all reflect and probably even motivate a changing sentiment, but neither have the leverage of a legal decision.
Were you surprised by the ruling? And what most surprised you about the ruling itself?
"The NCAA has done a terrific job, including with coining the term “student-athlete” in the 1950s, of entangling academics and athletics to the point where courts either cannot or will not sort out the joint roles."
Yes. First, I did not expect a decision so quickly. More importantly, the overwhelming consensus among the legal experts was that the petition would fail. I’m an economist, and while I believe the economic merits to classify college football players as employees are strong, I defer to the legal experts to evaluate the presentation before the board. They almost uniformly agreed, with long odds to begin with, that CAPA did not present a strong enough case. Also, graduate student union decisions by the NLRB were the best precedents, and most of those decisions did not bode well for the football players. Given all of that, combined with the long history of court decisions going against student athletes, I am surprised.
One of the most shocking things about it is how obvious the legalese sounds. For example: “Players receiving scholarships to perform football-related services for the Employer under a contract for hire in return for compensation are subject to the Employer's control and are therefore employees within the meaning of the Act.” Looking at it this way, why did it take so long for something like this to happen?
Yes, quite strange that it’s taken so long given the legal clarity when the nonsense is all stripped away. Between the Sherman Antitrust Act and Labor Law, we do not and would not allow this sort of fixed and (economically) exploitative compensation scheme to exist in any other context. However, that sport participation is “work” and that an athletic scholarship is “compensation” for that work is entirely lost until recently on most people, including judges and juries. The NCAA has done a terrific job, including with coining the term “student-athlete” in the 1950s, of entangling academics and athletics to the point where courts either cannot or will not sort out the joint roles.
I think the situation is analogous to baseball’s reserve clause, which, existing through the 20th century, finally broke down in the 1970s. Interestingly the key case, Flood v. Kuhn, was a split-decision loss for baseball players at the Supreme Court level in 1972, largely because the Court’s majority did not want to spoil baseball. But, the Flood case brought enough public attention to the inequities of the reserve clause, so that a, by comparison, quiet arbitrator’s ruling (Seitz) in late 1975 brought down the system. Hard to say how it will all play out, but O’Bannon or the Kessler plaintiffs could be the NCAA’s Flood, or the NLRB ruling could be the Seitz decision of the day.
From the coverage you've seen, is there any aspect of this that seems like it's being wrongly ignored or underreported?
I’m not sure if there is underreporting yet, but the implications, if this holds up through all of the appeals, are potentially complex, with all the parties involved. NLRB applies only to the private sector—a minority of the universities—and to universities as individual units. In this case only NU not the NCAA are the bargaining unit. State universities are subject to each state’s particular labor rules and not even allowed in “right to work” states. And that’s just a start. (Who is eligible for the union and who’s not, women’s sports and Title IX, etc., and on and on.) Interestingly, the complexity of change is often used as an argument against doing the right thing.
I've seen some people say this, so could the appeals process get prolonged over a number of years—even to the point where all the players who applied for union status will have graduated?
One thing that does bother me in the early reaction is all the claims that this process will drag on for years and years. That is not necessarily true. In the case of baseball, the decision was appealed to federal court, denied, and the parties agreed to a new system—all in less than a year. So, sure, it could drag out for a long time, but it also could settle relatively quickly. I think the NU group probably realizes that, regardless of the time frame, they are doing this more for their successors than themselves. Even a fairly quick resolution will be past the graduation of most now involved. There could be retroactive gains but doubtless they are motivated by the opportunity to be recognized for changing the system.
What should we look out for next?
The appeal process goes next before the National NLRB board in Washington, D.C. Of course, if the regional decision is reversed, that is a significant setback. A Democratic administration (Obama appointed the majority) is to the union’s advantage, but we’ll have to see how it unfolds. The decisions in the antitrust suits are also important. The O’Bannon ruling may come this spring. The NCAA will probably be more aggressive at the national NLRB hearing, but they are fighting a war on multiple fronts right now. They have maintained a very hard line position on these issues. However, the first domino may have just fallen. If that’s seen as the case, they may be more motivated to seek a compromise.