Winneker: College Athletics Faces Questions After NLRB Decision

By Joshua Winneker, J.D.
Misericordia University

The National Labor Relations Board (NLRB) recently raised a few eyebrows across the legal community when it ruled in favor of the Northwestern University football players' petition to unionize – which paves the way for the first college athlete union. It is not the first time college athletes have discussed unionizing or even striking, but it is the first time the NLRB has sided with the players – a necessary prerequisite to unionization.

Joshua Winneker, J.D.

In order for the NLRB to reach this conclusion, the board had to first determine that the football players at Northwestern were so-called employees of the college, which is what the NLRB concluded. This paradox is about as troubling writing it down as it was when I first read the decision. According to this legal ruling, college football players are considered employees of their college just like the president, dean of admissions or a history professor. Whatever happened to the notion that they are student-athletes?

The NLRB's decision was grounded on two basic points: That the players were paid by the university in the form of an athletic scholarship, and that the amount of time they are required to put into football outweighs the time they put into academics. This logic was somehow enough for the NLRB to determine that the players – as employees – can unionize and then collectively bargain with Northwestern University over the "terms and conditions" of their employment. That means the Northwestern football players, who are supposed to be students attending classes, studying for finals, and developing their adult personalities, will be going to the bargaining table over their employment issues. It is hard to imagine.

At this point, the decision only applies to Northwestern football players. NLRB decisions do not apply to public institutions, so if other players from other schools attempt to unionize at public schools, such as Penn State and the University of Pittsburgh, they will not be eligible to under federal labor law. The practical effect of this decision, though, is that if players go forward and unionize at private schools it will have widespread implications across all of college football. Ask yourself, where would you as a big-time football recruit rather go: A school where they are part of a union and have employment protections or to a college or university that does not have a players' union?

There are so many problems with this decision that it is difficult to determine where to start. First off, what will happen if the players decide to strike during the football season? The unionized players would legally be allowed to strike under federal labor law. What kind of damages would it inflict on their opponents? The opposing schools would be forced to cancel games, thereby losing needed revenue. A similar issue occurred with Grambling State's football team last season when their players sat out because of unfavorable playing conditions. They faced potential litigation from Jackson State for the lost revenue from the cancelled game.

Based on this decision, preferred walk-on players and players without scholarships would not be considered employees and, therefore, could not join the union. You would then be left with a fractured team that consists of student athletes engaging in the same time commitments for football, but not reaping the same labor law protections as union members. What about other student athletes on scholarship at the collegiate level, such as baseball, and track and field? Are they employees, as well, or does this opinion only affect the programs that produce lots of revenue?

College players who bargain over the terms of their employment could also run afoul of the NCAA amateurism rules depending on the benefits. Finally, if this truly does become an epidemic at colleges and universities across the country, then the best way for these institutions of higher education to respond is to simply stop giving athletic scholarships. Without the scholarships, there would be no payment to the alleged student-athlete employees. If it got to that point, the prospective athletes would be faced with the choice to not play college sports at all or play without a scholarship.

Right now, the only positive thing I can say about this decision is that it was simply from the Regional NLRB and it will be appealed to the Washington, D.C., board. Eventually, it will make its way – if necessary – through the federal court system and probably the United States Supreme Court as NCAA President Mark Emmert has stated. Hopefully, one of these stops along the way will simply put an end to this once and for all.

Joshua Winneker, J.D., is an assistant professor of business at Misericordia University, Dallas, Pa.

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