Northwestern U. Football Players Win Bid to Unionize

Nati Harnik, AP Images

Kain Colter, a senior quarterback at Northwestern, was a leader in the unionization effort. The university plans to appeal Wednesday’s decision, but regardless of the outcome, experts say the case could lead to radical changes in how colleges treat athletes.
March 27, 2014

Football players at Northwestern University cleared a significant hurdle on Wednesday, as a regional office of the National Labor Relations Board ruled that they qualified as employees with the right to unionize.

The decision, which the university said it would appeal, could lead to radical changes in how colleges treat big-time athletes. But the appeals process could take years to play out.

Some observers believe a union could allow athletes to share in television and licensing revenue and to secure long-term health benefits. Union leaders say their priority is to ensure the health and safety of players.

The unionization effort is one of several high-profile cases to challenge the NCAA’s amateur system. In interviews on Wednesday, several athletics officials said they believed the cases could prompt colleges to do more to help athletes, whether or not they ever go to trial.

Last week Jeffrey L. Kessler, a prominent sports-labor lawyer, filed a federal antitrust lawsuit against the NCAA, arguing that it had unfairly capped compensation for players in big-time football and basketball programs at the value of an athletic scholarship. And in June a federal antitrust case involving the use of athletes’ images and likenesses is set to go to trial in California.

Defending Amateurism

Legal experts say those cases have the potential to upend the business of major-college sports. But the NCAA has shown little willingness to negotiate change in its amateur model.

On Wednesday, Donald Remy, its top lawyer, issued a statement in support of Northwestern University, arguing that athletes are not employees and saying that, over the past three years, colleges had worked to re-evaluate NCAA rules in support of players.

"While improvements need to be made," he said, "we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college."

In recent months the NCAA has wrestled with changes in its Division I governance structure. It hopes to create a system in which the wealthiest colleges have more autonomy and are allowed to provide additional benefits to players, such as an extra $2,000 toward their cost of attendance.

This week the association proposed adding three new voting members to its Division I Board of Directors, and floated a new voting structure for a proposed rule-making body that would give elite conferences more power.

Critics say that those changes amount to little more than tweaks, and that the NCAA had missed opportunities to make meaningful changes.

"In all my years of doing this, there’s never been a time when people have tried to fundamentally change the model like this," said Gene Marsh, an emeritus law professor at the University of Alabama at Tuscaloosa and a former chair of the NCAA’s Division I Committee on Infractions. "But with all the things in the air, the NCAA is talking about raising the allowance of the child in your family—it’s embarrassing."

Compensating Athletes

Others say the NCAA should focus on creating a system that is designed less around ideals such as representative government and more around the long-term needs of players.

"At some point, the NCAA really needs to contemplate structural change that accommodates some form of amateurism but that is a very different model than what we’re accustomed to," said Michael McCann, a law professor and director of the Sports & Entertainment Law Institute at the University of New Hampshire's School of Law.

As a starting point, he said, athletics departments should allow players to receive some form of compensation for the use of their image and likeness, even if it’s deferred until after they are done competing. Specifically, he believes that players should be allowed to earn a cut of revenue from video games and television broadcasts.

Colleges have resisted those ideas, arguing that to do so for football and basketball players would require them to share money with all athletes. If that happened, they say, it could mean the end of Olympic sports on campuses, as they would not have enough money to support all the scholarships.

On Wednesday, Northwestern said it would appeal the regional office's ruling to the five-member National Labor Relations Board, in Washington. Several legal scholars said they believe the board will support the players’ case.

If that happens, the university could appeal through the courts, where the NCAA has traditionally succeeded, said Mr. Marsh, a lawyer with Jackson Lewis, a large employment firm.

"In all kinds of litigation and legal proceedings, the NCAA falls behind in the early innings but is hell on wheels in the late innings," Mr. Marsh said in an email. "They lose infractions battles in lower courts and some other monumental cases in the early proceedings, but prevail in the end.

"Same may well be true with all the litigation going on now," he added. "But they'd have to be living right to come out 3-0" in the big cases ahead.