Picture an adult who spends 40 to 50 hours a week expertly performing a particular service under the direction and control of designated managers, in exchange for some form of compensation, while generating millions of dollars in profit in the process. Does that sound like a job to you? Does that person sound like a worker?
Apparently, the National Labor Relations Board (NLRB) isn’t so sure.
In its decision Monday rejecting Northwestern football players’ petition to form a union, the NLRB neglected to answer the question at the center of the case: are athletes who receive grant-in-aid scholarships employees of their universities?
Instead, the NLRB “declined to assert jurisdiction” in the case, because doing so, they said, “would not promote labor stability” across the NCAA. The argument here is that because the NLRB does not have jurisdiction over state-run schools, conferring collective bargaining rights on players at Northwestern alone—one of only 17 private schools among 125 Division I football squads—would create an unstable and asymmetric league environment, in which different rules apply to different teams and conferences.
Indeed, if the federal NLRB had voted to uphold its regional director Peter Sung Ohr’s 2014 ruling that Northwestern players are employees, there would likely have been ripple effects, implicating teams beyond the Wildcats, and forcing something of a reckoning within the much-maligned NCAA.
That, however, would be a good thing.
Workers in an Unfair System
By refusing to rule on a simple question—Are Northwestern’s players workers?—the NLRB has elected to maintain a status-quo in which thousands of young athletes are denied basic employment rights and equitable compensation, while their universities and the NCAA reap the (extraordinary) profits of players’ labor and fame.
Preserving the “stability” of the system—the NLRB’s stated goal—is beneficial to just about everybody but the players. As Nation magazine sports editor Dave Zirin put it, “College football is stable the way that Pinochet’s Chile was stable: As long as everyone keeps their mouth shut, the system works just fine.
The answer to the question the NLRB dodged is that the Northwestern Wildcats are, unambiguously, employees of Northwestern—that is, at least as far as NLRB precedent defines employees. As stated in the union’s brief for the case, the players “perform services for [the University], under the [University’s] control or right of control . . . in return for payment.
Let’s walk through the logic.
It hardly bears stating that the players perform an extremely valuable service for Northwestern. The university’s football program generated revenues of about $235 million between 2003 and 2012, income that the university used to advance an array of goals. In return, players receive compensation in the form of scholarship funding—expenses totaling as much as $76,000/year—which, critically, can be revoked if a player voluntarily withdraws from the team or violates the team’s rules.
The question as to whether players are subject to the “control” of the university is just as clear-cut.
Kain Colter, a leader of the union effort and former team quarterback, testified that, during training camp, players dedicate between 50 to 60 hours per week to football-related activities. During the season, they have football practice every day except Sunday, a total of 40 to 50 hours per week. Even in the winter and spring months, players have mandatory workouts and training, devoting as many as 25 hours per week to football.
Players have scant time away from the program, even during school-sanctioned holidays. On Thanksgiving day, for example, the Wildcats must report for regular Thursday meetings and practice. If they elect to leave campus after fulfilling their football obligations, they have to stay within a six-hour radius of Northwestern. Over the winter holiday period, players must get their travel plans approved by their position coaches. If the team has qualified for post-season play—as Northwestern typically does—as little as five days are allowed for visiting family.
Northwestern coach Pat Fitzgerald, who forcefully opposed unionization, even admitted in his testimony that the responsibilities of football at Northwestern amount to a “full-time job.”
Generally speaking, Fitzgerald and the coaching staff maintain “strict and exacting control” over the everyday lives of the Wildcats. Players’ daily responsibilities are outlined in detailed schedules prepared by their coaches and distributed year-round. Failing to adhere to these agendas has serious consequences. As Bryan Curtis reported for Grantland last year, Northwestern also controls where players are allowed to live, when they can talk to the press, and “whether they can curse in public“ (they can’t).
In a bizarre demonstration of the degree of power exerted over even the most mundane details of a player’s life, the Wildcats are “prohibited from denying a coach’s ‘friend’ request” on Facebook.
Coaches, says Colter, “have all the control.”
An Old Ruse Continues
On what basis, then, have Northwestern and their lawyers maintained that these athletes are not employees?
Taking its cue from the NCAA, the university maintains that football players are “students, first and foremost.” That is, even for the most elite college athletes, sports are secondary to academics.
As Taylor Branch wrote in his damning Atlantic profile of the NCAA, this notion of the student-athlete (as opposed to, say, the athlete-student) is a core principle of the NCAA, from which it derives “much of the justification for its existence.”
In fact, however, the “student-athlete”—and its accompanying connotation of uncorrupted amateurism—is a longstanding legalist fiction, invented by the NCAA to protect itself from liability.
In 1955, Billie Dennison, the wife of Fort Lewis A&M Aggies player Ray Dennison, filed a claim for workers’ compensation death benefits after her husband died of a head injury incurred while playing football. At the time, Walter Byers, the first executive director of the NCAA, crafted the term “student-athlete” to distinguish Dennison from an employee—whose widow might deserve remuneration. (Sadly, had Dennison slipped and fell while working in the school cafeteria, his widow might have been better off.)
Ultimately, Fort Lewis and the NCAA prevailed. Dennison’s claim was denied, and the NCAA incorporated the slippery term into its foundational documents. Since then, the mythic “student-athlete” has been invoked time-after-time to protect the NCAA from workers’ compensation claims and counter any suggestion that college athletes deserve the benefits of employee status.
By declining to challenge the logic that athletes who also attend school cannot be workers, the NLRB has allowed Northwestern to continue the NCAA’s longstanding tradition of invoking amateurism to avoid accountability for the health and safety of college athletes.
Indeed, the first item on the Northwestern players’ union’s list of collective bargaining goals is “guaranteed coverage for sports-related medical expenses for current and former players.” Second is “minimizing the risk of sports-related traumatic brain injury.”
Labor Law on Campus
In recent years, private universities (and their lawyers) have been on the frontlines of the effort to constrict who counts as an employee—and who therefore deserves the right to collectively bargain. Administrators at Brown, Yale, Columbia, and elsewhere have opposed the unionization of graduate assistants, insisting that they—despite exchanging their labor for compensation in the form of research funding—are not workers.
Indeed, some of those cheering the NLRB’s decision on Northwestern are the same people who’ve fought to deny collective bargaining rights to others in the university system.
Joe Ambash, a management-side labor lawyer who represented Brown when its graduate students sought to unionize in the early 2000s, told the New York Times that the Northwestern decision was “politically smart,” as “the board would have faced a firestorm of protest if they made college football players employees.”
And while doctoral students can at least hope to escape their period of pseudo-indenture with an advanced degree, NCAA football players tend to graduate with a worse education than their peers and chronic, sometimes debilitating health problems.
Given the overwhelming evidence that nothing distinguishes a scholarship football player from an employee of the university—besides the insidious legal fiction of the “student-athlete”—it’s difficult to interpret the NLRB’s decision as anything but a politically timid evasion that preserves a system of historic exploitation.
The Next Play
The NLRB’s (non)-decision has an upside: because no precedent was set, it does not foreclose future organizing drives among private or public university players. The NLRB emphasized that the ruling “is narrowly focused to apply only to the players in this case.” If another group of athletes emerges who are, in Kain Colter’s words, “willing to put their necks on the line,” the NLRB could be forced to reconsider.
In the meantime, players and their advocates have other means of achieving their goals.
At this year’s NCAA convention in Washington, D.C., representatives of the Power Five conferences—including fifteen athlete representatives—voted to allow athletic scholarships to cover college expenses beyond tuition, room, board, books and fees. They also ratified a new concussion management protocol, longer-term health benefits for former athletes, and prohibited schools from discontinuing scholarships for performance reasons.
Pending lawsuits could also prompt reform. In Jenkins v. NCAA, a group of players accused the NCAA of acting as a “price-fixing conspiracy,” which limits their compensation in violation of the Sherman Antitrust Act. If the plaintiffs prevail, NCAA limits on athlete compensation could be stripped away. Athletes and administrators also await a ruling from the Ninth Circuit on whether the NCAA can prohibit college players from earning money when their names and likenesses are used in video games and television broadcasts.
Congress could also act. Five members of Congress reintroduced legislation in June 2015 that would mandate concussion testing for college-level contact sports and provide for greater due process rights for athletes involved in NCAA infraction cases. The bill would also establish a Presidential Commission on Intercollegiate Athletics to review a number of issues—financing, academics, tax regulation, health and safety—and report its findings to Congress and the White House.
Despite its recent setback, the union movement deserves credit for forcing universities, sports fans, and the NCAA to face some of the less-pleasant realities of college athletics. It’s unlikely many of these reforms would be on the table without the efforts of Kain Colter and his teammates.
But that doesn’t mean he’s giving up. Colter still believes legal protection under the National Labor Relations Act is the best way to ensure athletes’ needs are met. And that means further dismantling the ideology of amateurism.
“A lot of the things that we’ve been fighting for have been adopted,” Colter told ESPN on Monday, “But there is a lot of room to go.”
Photo credit: Google Search, Northwestern Wildcats, http://bit.ly/1PCs8BG.