Sorting Out Key Questions in Players’ Bid to Unionize

March 29, 2014

Major-college athletes are still a long way from having the ability to collectively bargain, but the ruling this week allowing Northwestern University football players to organize could have a widespread impact on big-time college sports.

The ruling, which Northwestern said it would appeal, is one of several challenges to the NCAA’s system of amateurism. Legal experts say the case does not pose the immediate threat that some pending lawsuits do. But it has thrust the issue of player rights onto the national stage.

Following is a look at five key questions surrounding the case, with insight from legal experts, union organizers, and college leaders on how the next steps could play out.

How might the decision affect player pay?

The ruling, from a regional director of the National Labor Relations Board, found that athletics scholarships are a form of compensation for services performed and that, because of the significant time commitment required by their sport, the economic relationship they have with their university, and the control the institution has over their schedules, football players are employees of their university.

Northwestern disagreed. In statements issued this week, it said that players are students first and that the decision overlooked critical parts of its testimony. It plans to appeal to the five-member National Labor Relations Board in Washington.

Some commentators have painted the athletes’ bid as a money play. But Ramogi Huma, president of the College Athletes Players Association, who led the unionization effort, said that Northwestern’s athletes are not using the case as a platform for financial gain. Instead, he said, they are seeking protections for injured athletes and more assistance to help players finish their degrees.

Former scholarship athletes in other big-time programs would like to see colleges give players as many as eight years to finish their degrees and the chance to attend part time while competing. They would also like to see players spend less time on their sport.

"If universities are going to let kids into the system who read at an elementary level, they should be spending 60 hours a week on school and 20 on football—not the other way around," said Bob DeMars, a former football player at the University of Southern California.

Who could join the union?

The opinion gives scholarship football players at Northwestern an opportunity to unionize. If they agree to do so, and if the ruling stands—which could take years to resolve—the opportunity could extend to athletes at other private colleges.

Among the wealthiest conferences, there are relatively few private institutions—just 17 of the 120 or so that compete at the NCAA’s highest level. (The ruling does not apply to public colleges, which are governed by state laws.)

Scholarship football players may not be the only ones allowed to join a prospective union, legal experts said. The case could open the door for all scholarship athletes, male or female.

Broadening the bargaining class could work against football players, one athletic director said.

Assuming they joined, the students in nonrevenue sports, who are greater in number than those on football scholarships, could have bargaining power over their football peers. They could attempt to negotiate for similar perks, such as flying on charter aircraft. And they could arguably negotiate over whether their jobs could be eliminated.

Mr. Huma, however, does not see any disadvantage to having more players join a possible union. "That would be a very important development," he said, "that could protect those players as well."

How are other programs reacting?

Officials at several top private colleges would not talk about the case. One elite institution directed its employees this week not to make any public comments, including in social media, and offered a list of ways to "avoid liability," according to a document obtained by The Chronicle. (One suggestion from the university: Do not "promise benefits to student-athletes to discourage union support.")

Other athletic directors did not appear concerned about the case’s impact. Some said they were more worried about legal cases that would apply to more colleges, including antitrust lawsuits involving scholarship caps and the use of athletes’ images and likenesses.

In an interview published online this month on the University of Southern California’s website, Pat Haden, the Trojans’ athletic director, directly addressed the unionization effort, saying that he had looked at the demands of the Northwestern players, and "quite honestly, we provide most of those already."

"We do not yank scholarships from players, and we happily pay for former student-athletes to come back and complete their degrees," he said. In terms of health benefits and stipends, he said, USC provides the maximum allowed under NCAA rules.

"But we would love the opportunity to do more, especially when it comes to feeding our student-athletes," he said. "It is unjust that we cannot feed them when they are hungry, but we have to live within the NCAA rules."

What are the odds on appeal?

Several legal analysts told The Chronicle that they expected the five-member National Labor Relations Board to uphold the decision. But if the case makes it into the courts, they said, the odds for the athletes would not be as favorable.

Over the years, the NCAA has fended off a number of legal challenges to its amateur model. That case law could give Northwestern an advantage in court.

But it’s more likely that changes—if they are going to happen—will come outside of the courts, said Warren K. Zola, a sports-law expert at Boston College.

"This is another brick in the wall toward reshaping what college athletics will look like in the future," he said. "But I think the outcome will be shaped by conversation and not in a lawsuit."

Will the NCAA do more to help players?

The NCAA is weighing a redesign of its Division I governance structure aimed at providing more autonomy for the wealthiest programs. The idea is to allow the colleges that can afford to offer more financial assistance to athletes a chance to do so.

But some critics say the NCAA is not doing enough. On Friday members of the Coalition on Intercollegiate Athletics, a group of faculty-senate leaders at some 60 big athletics programs, sent a letter to Mark Emmert, the NCAA president, expressing concerns about its recent reform efforts.

Players are still spending too much time on their sports, the faculty members said, and institutions are making investments in athletics that are unsustainable. The faculty leaders urged the NCAA to act quickly to design a regulatory framework that would "unambiguously demonstrate that the primary relationship between NCAA member schools and athletes is an academic one."

Harvey S. Perlman, chancellor of the University of Nebraska at Lincoln, said the Northwestern case confirms the need for the five wealthiest leagues to control their own destiny.

"I would hope people would understand why it is that the five conferences have to have the ability to respond to legitimate student-athlete concerns to avoid some of these more disruptive outcomes," he said.

Allowing colleges to increase the value of scholarships should be a baseline change, he said. But he also sees colleges' looking carefully at assuring athletes who leave early for professional leagues that they can come back to complete their degrees. He also expects colleges to consider providing long-term medical benefits for injured athletes.

A tougher sell is reducing playing and practice time. This month Bob Bowlsby, the Big 12 commissioner, called the 20-hour limit on playing and practice a "joke," suggesting that colleges fabricate their time sheets.

Mr. Perlman said playing and practice should be reduced to give players a chance to have internships and to travel abroad. As it is, he said, it’s "almost impossible for athletes to take advantage of study abroad and other increasingly central aspects of an undergraduate education."

As for allowing athletes to earn money apart from their scholarship, he was less sure.

"We don’t stop a violinist on scholarship from going out and playing concerts and making money," he said. "The question is, Should an athlete be allowed some opportunities to explore their athletic talent?

"For me, that’s a little harder," he said. "I mean, they shouldn’t get a cut of classic-game rebroadcasts—those are clearly university-owned interests. But I think this is an area that needs to be relooked at. I don’t think we are in a particularly good position right now."