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Patrick Hruby

Can College Athletes Unionize?

Explaining Northwestern University football players' bid for unionization

Sports on Earth

Don’t say you didn’t see this coming.

As first reported by Tom Farrey of ESPN’s Outside the Lines, a group of Northwestern football players are asking to be represented by a labor union, the first step toward being legally recognized as school employees — a recognition that would fundamentally alter the economic and power dynamics of big-time college sports.

Herein, a breakdown of what’s happening, and what it all means:

So what, exactly, is going on?

A group of Northwestern football players led by senior quarterback Kain Colter have submitted signed union cards and a petition to be represented by a labor union to the National Labor Relations Board, the federal organization that recognizes groups that seek collective bargaining rights.

If the NLRB ultimately recognizes the union — which would be called the College Athletes Players Association — its members would have to be treated as school employees and granted the same workplace rights and protections as everyone else, a death blow to the NCAA’s current amateur system.

Kain Colter — sounds familiar. Where have I heard that name before?

Last September, Colter was one of more than a dozen major conference football players to write the letters “APU” — short for “All Players United” — on their wristbands and other gameday accessories in order to protest athletes’ lack of power, voice and what Pulitzer Prize-winning civil rights historian Taylor Branch correctly has diagnosed as basic economic and due process rights within NCAA amateurism.

Right. I remember. What did All Players United want?

As I wrote at the time, the point of last year’s protest was to draw attention to a mix of symbolic and concrete goals:

* Showing support for athletes who are currently suing the NCAA over its handling of concussions and brain trauma;

* The NCAA instituting serious, systemic policies to minimize the risk of athlete brain damage, something the association has failed to do despite its raison d’etre;

* Showing support for former and current athletes who have joined former UCLA basketball star Ed O’Bannon’s antitrust lawsuit against the NCAA regarding the use of player likenesses;

* The NCAA and its member schools increasing scholarship amounts to cover the full cost of attending school; guaranteeing scholarship renewals for permanently-injured athletes; ensuring athletes aren’t stuck with sports-related medical bills; and establishing a trust fund to increase graduation rates.

An online APU petition read as follows:

I’m joining players and fans from campuses across the nation to stand against unjust NCAA rules that leave college athletes without basic protections. Players should not be forced to forfeit their rights and endure unnecessary physical, academic, and financial risks as a condition of participating in NCAA sports.

So, did the new unionization bid grow out of All Players United?

Partially. According to Farrey, Colter first contacted the National Collegiate Players Association — a 13-year-old college athlete advocacy group founded and headed by former UCLA linebacker Ramogi Huma — last spring. Colter reportedly became a leading voice on regular NCPA conference calls, and following the APU protest, he invited Huma to Northwestern’s campus to meet with other athletes who wanted to unionize.

Where did the original unionization idea come from? Believe it or not, from a college class. Yahoo! Sports columnist Dan Wetzel has the scoop:

As Kain Colter prepared for his third season as Northwestern’s starting quarterback last summer, he took a class at the Evanston, Ill., school called “Modern Workplace.”
In it, he studied unions across history, including the current ones involved in professional sports. That’s when the instructor noted, according to Colter, “I can’t believe that student-athletes do not have a players union.”
The line hit Colter hard. College sports were a part of the Denver native’s life. Here he was at exclusive Northwestern, about to become a two-time team captain in the Big Ten while developing into an NFL prospect. Yet, he long ago came to believe the NCAA’s rules of amateurism were “unjust.” There was something wrong, he thought, with players making billions of dollars for colleges and universities, yet having little to no say on how their sports were run and how the players were protected – let alone having any input as to where all the money went.

“I was doing an internship, and along with that you have to take a class,” Colter told Sports on Earth. “We were going over all the unions in the nation. We talked about the steelworkers, professional sports leagues. The teacher said, ‘it’s a shame you don’t have a union with all the money you’re generating. That doesn’t make sense.’ I realized it doesn’t, and that’s when I started doing research and ended up finding the NCPA and Ramogi.”

Are the athletes doing this on their own?

No. Farrey reports that CAPA was co-created by Colter, Huma and Luke Bonner, a former UMass basketball player and brother of NBA player Matt Bonner. Huma will be CAPA’s president. The United Steelworkers also are providing support, but will not receive union dues from the athletes.

How many players are we talking about?

A minimum of 26, though the exact number is unclear. Huma told Farrey that an “overwhelming majority” of Northwestern’s 85 scholarship football players have signed on. At least 30 percent of the members of an employee group must sign union cards for the NLRB to consider their unionization petition.

“There are some other guys on the team that have played a big role and have been pretty involved in the process,” Colter says. “I’m not gong to list their names. But when the cards were signed, it went a lot smother than expected. Guys can easily relate to the issues going on, the pitfalls in NCAA rules and regulations. What we had to give them was assurance that they would be safe and that we weren’t blowing smoke.

“Once we did that, it was a no-brainer. Almost 100 percent of the guys [on the team] signed cards.”

And it’s only football players?

It is. For now. Huma told Farrey that only NCAA Division I FBS football players and men’s basketball players will be eligible to join CAPA — not because non-revenue sports athletes don’t deserve a voice and workplace protections, but because revenue sports athletes are in the best position to make a legal case that they should be treated as employees.

Does CAPA share the same goals as APU and the NCPA?

Yes. Over at Reddit, a poster claiming to be a Northwestern football player wrote the following:

This isn’t about getting paid. What it is about is protection. Many of us will have numerous injuries throughout our playing careers. A group of those players will continue to feel the effects of those injuries long after their playing days are over. The goal is to have some sort of medical protection if we need surgeries stemming from injuries sustained while playing for our university. Another goal is graduate school for those who were fortunate enough to play as a true Freshman. Most student-athletes get redshirted in their first year, and receive one year of grad school payed for in their fifth year of eligibility. We feel as though it is fair to ask for the same investment from the university all around. It isn’t about getting an extra $200 a month for spending. We have our stipend, and if we budget correctly we are able to make it stretch for the month. Would it be nice to have some part of jersey sales or memorabilia sales? Absolutely. But that is not the goal as of right now.

Not the goal as of right now. OK. Wouldn’t pay-for-play be an eventual goal?

Probably. It’s hard to imagine that a group of college athletes with actual collective bargaining rights would look at the staggering amount of television money flowing into big-time football and basketball and not want a bigger piece of a pie that their effort and performance is creating. At the very least, expect unionized athletes to balk at NCAA amateurism prohibitions on earning outside income from endorsements, signing autographs and appearing in video games.

Why do college athletes need a union?

Simple. Symbolic statements and wristband Twitter hashtags aren’t enough. Not when it comes to the NCAA (a) listening to athletes’ concerns; (b) doing something about them.

The NCAA touts its national Student-Athelte Advisory Committee as a way for athletes to “offer input on the rules, regulations and polices” that affect their lives. Thing is, the SAAC — made up of current college athletes — has no actual power. No vote when it comes to college sports policymaking. It’s the nicest-looking house in the Potemkin village democracy of college sports. As former UCLA punter Jeff Locke told me last year:

“The NCAA points to the SAAC as our voice, but there is no voice in it. I was part of it at UCLA for two-and-a-half years. It’s just talking. The majority of meetings are about coming up with community service events. We gave some feedback. But actual legislation? There was nothing like that going on.
“When I think of voice, I think of a vote. Actually changing policy. That is what a voice means in every other industry, right?”

Three years ago, NCAA member schools shot down a proposed additional $2,000 cost-of-living stipend for college athletes, the better to almost make up for an average $2,763 annual gap between a full athletic scholarship and the actual cost of attending college. The association only recently changed a 1970s rule that prevented schools from offering athletes four-year scholarships instead of one-year renewable deals — and only did so when pressured by the Department of Justice, a change that left Texas women’s athletic director Christine Plonsky complaining about athlete “entitlement.” In a concussion lawsuit court filing last December, the NCAA even denied a legal duty to protect college athletes from physical harm, repudiating both the traditional en loco parentis role of universities, and also the association’s founding mission.

Small wonder, then, that athletes finally have decided to take matters into their own hands. As Huma told Farrey:

“It’s become clear that relying on NCAA policymakers won’t work, that they are never going to protect college athletes, and you can see that with their actions over the past decade. Look at their position on concussions. They say they have no legal obligation to protect players.”

Colter concurs. In fact, he told Sports on Earth that the NCAA’s denial of a legal obligation to protect players from brain damage was the final straw for many of his teammates.

“The [NCAA's denial] was before we collected signatures,” he said. “We used their exact quote [from the concussion lawsuit] in the meeting with the team. If the NCAA doesn’t have duty to protect us, who does? The university? Maybe. We’re out in the cold. So it’s time for us to look out for ourselves by forming a union.”

But why a full-blown union? Why don’t college athletes just strike or stage a sit down – like the Grambling State football team did last fall — until the NCAA listens to them?

Great question. I’ve argued before – and in more than one place — that a college athlete strike could bring swift and lasting change to the status quo. The reason?

A strike would change the power equation. It would hit the campus sports-industrial complex where it hurts: in the wallet. Television money is the NCAA’s lifeblood. Networks such as CBS and ESPN are the system’s sugar daddies. Broadcast executives likely don’t care about how school, conference, and bowl administrators divvy up their millions. But they do care about the finished product: the games. The contests that allow said networks to attract eyeballs in the 18-34-year-old male demographic, the same eyeballs they can then hawk to advertisers — all while leaning on cable and satellite providers for lucrative subscription fees. Take away March Madness — or the BCS football championship game — through a sit-out, and the NCAA will have instant incentive to cut a more evenhanded deal with its athletes. Otherwise, the networks will turn off the cash spigot.
“The only way change is going to happen is with a hammer,” says [Dave] Meggyesy, [a former Syracuse football player] who worked as union organizer and taught classes at Stanford University about athletics and society. “And the ultimate pressure is players withholding service.”

Problem is, strikes are risky. They’re hard to pull off, especially for college athletes. In the 1990s, a group of men’s basketball players reportedly planned to stage a sit-down during the the NCAA tournament. The plan fizzled. According to former Massachusetts guard Rigo Nunez, players were afraid of being blackballed. Moreover, they wanted to play.

Former Maryland basketball player Laron Profit once explained it to me like this:

“Would a strike get the attention of a lot of people? Sure. Would it scare people? Yeah. But to ask 19-year-old kids whose futures depend on playing well in front of millions of people and future employers who are evaluating them to put themselves on the line is tough.
“Imagine if [former Baylor quarterback and Heisman Trophy winner] Robert Griffin III had sat out the first 30 minutes of a bowl game. Do you know what kind of impact that could have on his draft status? People don’t want troublemakers.”

Unionization is different. It makes striking — withholding labor — a weapon of last resort, as opposed to a first and only option. Gains and concessions instead can be won at the collective bargaining table. And those gains can be codified and formalized. Here’s Thomas Jefferson School of Law assistant dean Josh Winneker on why the difference matters:

… for college players, without a union, nothing will be memorialized in a collective bargaining agreement. The players may be able to get the NCAA to concede on something small simply to get the games back up and running, but they will not be able to secure a contract between management and the employees that will dictate terms and conditions of employment going forward long-term. Between that and the fact that if the players “sat out” they would be unable to showcase their talents for professional scouts, college athletes stand to lose more from sitting out than they would have to gain …

How does this differ from past efforts to organize college athletes?

It’s far more serious. And far more organized. In the 1980s, former Duke point guard Dick DeVenzio waged a one-man campaign against the NCAA. He wrote a book, Rip-Off U, that lambasted amateurism. He started an athlete advocacy group out of his Charlotte, N.C., townhouse, mailing newsletters to 300 college athletes.

In 1987, DeVenzio asked Oklahoma football stars Brian Bosworth and Spencer Tillman to delay the start of a game against Nebraska. The players considered the idea, but ultimately settled on the less disruptive option of kneeling for pregame prayer intended to draw attention to athlete’s rights.

DeVenzio had the right idea. But he was simply ahead of his time in trying to unite far-flung college athletes in a pre-Internet world, and during an era in which there was far less money in college sports and the culture at large didn’t see big-time “amateur” sports as increasingly exploitative.

To put things another way: A quarter-century ago, would Time magazine have featured a cover like this?

What has to happen to for CAPA be recognized as a union? And how long will it take?

It could take years. The process is complicated, and almost certainly will end up in federal court, with both Northwestern and the NCAA lawyers fighting tooth-and-nail every step of the way.

First, the university has to accept or reject the unionization bid. If the school gives a thumbs-down – and it will – a local labor board will consider arguments from both Northwestern and the players and issue a ruling. Either side can then appeal the ruling to the NLRB, whose judgement can then be appealed in federal court.

Ultimately, recognition will come down to the questions at the heart of the college sports amateurism debate: Does playing big-time NCAA sports constitute work, and if so, are athletes then employees?

For decades, the NCAA and its member schools have deftly side-stepped this question — and with it, salaries and worker’s compensation benefits — by calling college players “student-athletes,” a term of legal fiction that has been upheld by a mostly incurious federal judiciary. No longer. The CAPA petition is a direct assault on the term — and also on its underlying amateur philosophy.

Does the athletes’ case have legal merit? Can they convince the NLRB?

I’m not a labor lawyer. That said, I think the answer to both questions is yes. In a Buffalo Law Review article titled “A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics,” authors Nicholas Fram and Thomas Frampton make a compelling case that college athletes should be considered employees under the National Labor Relations Act, the federal law that governs labor relations at private universities.

In a nutshell, their reasoning goes like this:

1. Athletes generate money for universities through labor that school officials directly control;

2. Playing sports is not a prerequisite for — and is arguably a hindrance to — earning an academic degree;

3. Under labor law tests, both facts suggest that student-athletes are actually employees, and that play is really work.

“Not too long ago, universities made a very similar argument to [the one they make with college athletes] to deny other employees collective bargaining rights,” Frampton told me last year. “Clerical workers. Dining Hall workers. Maintenance staff. The idea was that special circumstances at the university made it somehow separate and distinct from the sphere where real business happens, that labor law is basically confined to factory workers at a Ford plant in 1937.

“That worked for a while, but as the economics of the modern American university made it clearer and clearer that real work was happening, the [National Labor Relations Board] rejected that. Now unions are very common at universities, and the universities have not crumpled.”

As ESPN’s Farrey notes, graduate students who teach are recognized as employees of universities under laws in many states. Why should college athletes — who also perform a valuable service for schools in exchange for compensation — be special or different?

“It’s very hypocritical for the NCAA to say that we are not employees,” Colter told Sports on Earth. “Say a student has an academic scholarship. To make money on the side, he works in the bookstore. They consider him an employee and there’s no conflict there. A student and an employee can both exist.”

Wait, all of the above is talking about private universities. Like Northwestern. What about public schools?

Great question. In their article, Frampton and Fram note that student employees in at least a dozen states have the right to unionize — so if the NLRB finds that Northwestern football players qualify as student employees, that could make things easer for a group (or groups) of state school athletes to be recognized as the same … and then form a union.

The article also identifies 14 states as being particularly promising for a college athlete union, including Michigan, Florida, Nebraska and California. Under the state law of the latter, students who provide services for the universities they attend automatically qualify as employees when:

a) The services they provide to a school are “[un]related to their educational objectives”;

b) Their “educational objectives take a back seat to their service obligations.”

Would a UCLA or University of California, Berkeley football player meet the above tests? I think it’s possible, even likely. As I’ve written before, consider abysmal graduation rates. Consider time away from class traveling for games and tournaments. Consider a survey that found the average men’s Division I basketball player spends about 39 hours a week playing his sport — almost double the maximum 20 hours a week college athletes are supposed to spend on sports, according to NCAA rules. Are football players spending any less time in the weight room and on film study?

Here’s a better question: Given the above, is there any way said football players wouldn’t be considered employees, and therefore allowed to unionize?

Why is this all happening now?

Besides shifting cultural attitudes toward college athletes? Here’s a guess: President Obama has succeeded in getting nominees confirmed to the NLRB, which tends to shift between supporting (Democrats) and denying (Republicans) college student unionization depending on which political party controls the White House.

How does this news relate to the ongoing O’Bannon case?

Easy. Between the O’Bannon case and a possible athlete union, amateurism is under siege — and with it, the NCAA’s entire collusive business model.

Imagine this: you’re a college athletics administrator. Every NCAA school agrees that they will cap pay for administrators at room, board and free credit hours. No salary. In fact, if any school offers you a salary – or you receive any other compensation at all from just about anyone – you’ll be suspended from working and your school will be punished.

Does that sound fair? Does that sound legal? Under antitrust law, it isn’t. Unless you substitute college athlete for college athletics administrator – or more specifically, substitute the term “student-athlete.” By defining (a) college athletes as a special class of students who just happen to compete in sports and (b) the hard, physical work of said competition as intramural-like play, the NCAA and its member schools have gotten away with the fever dream of every business owner ever: not having to pay a competitive price for workforce talent.

Of course, all of this hinges on the NCAA’s imaginary, semantic, Catch-22-shaming distinction between “professionals” and “amateurs” — the latter being whatever the NCAA says they are, and the former being everyone else in society. The O’Bannon case threatens to torpedo that distinction by allowing college athletes to be compensated for the use of their name, image and likeness; CAPA threatens to do the same by redefining college sports as work.

“We’re already employees,” Colter told Sports on Earth. “We provide a service to the university separate from any academic service. In return for athletic service, we receive a scholarship, and that is based up on performance of that service. If we play badly or don’t perform to coaching standards, at a lot of programs have one-year renewable scholarships and they can terminate them, even if you are a 4.0 student.

“They say we play the game out of love and basically volunteer to play. We do love the game. But we’re not volunteering to play. We are being paid in the form of the scholarship and stipend check. If we decided to skip a game or practice to study, we wouldn’t have that scholarship. So to me, it’s a no-brainer that we’re working.”

Has the NCAA responded?

You bet! The NCAA’s top lawyer, Donald Remy, issued the following statement, which I’ve annotated:

This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education.

Hey, America: You still hate those dastardly liberal unions, right? This is all their puppet-mastering fault. Besides, everyone knows that making money is completely antithetical to being educated, and no one in recorded history except everyone who has ever had a campus work-study job has ever collected a university paycheck and a diploma.

Student-athletes are not employees, and their participation in college sports is voluntary.

So what if we collude to fix prices for valuable college-age athletes at the cost of athletic scholarships, while one of our main O’Bannon case expert witnesses cites us in his own economics textbook as a classic example of a cartel? No one is forcing Johnny Manziel to play football at Texas A&M. If he doesn’t like our rules, he can go to Europe. Or Mexico. Or somewhere. Whatever. The same way that if every corporate law firm in America conspired to fix my billable rate at, like, $13 an hour, I would sue them into oblivion go practice law in Canada.

We stand for all student-athletes, not just those the unions want to professionalize.

Divide and conquer, baby. Women’s lacrosse vs. football. Oh, and you do hate unions, right? What if we told you that Nickleback is represented by UNIONS?

Many student athletes are provided scholarships and many other benefits for their participation. There is no employment relationship between the NCAA, its affiliated institutions or student-athletes.

These ingrates are getting a great deal — why don’t they just shut up, already? Also, pay no attention to Nick Saban’s salary, or the fact that the average athletic director whom nobody at ESPN is paying billions to broadcast at work behind their desk makes $500,000 per year. Those people are real employees.

Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act. We are confident the National Labor Relations Board will find in our favor, as there is no right to organize student-athletes.

Seriously, we make an awful lot of money off these kids, and we’re prepared to spend it on lawyers. As in: all of them.

Does Colter have a response to the NCAA’s response?

He does. ”We’re fully aware of what we’re doing,” Colter told Sports on Earth. “We’re not getting forced or pressured into any of this by any union. The steelworkers and Ramogi have been generous in supporting us. But we’d seek to do it without their help.

“As for education, we’re grateful for our education. At Northwestern, we work tremendously hard to receive our degrees. At the same time, a degree is not going to stop [chronic traumatic encephalopathy] we may have from concussions. A degree won’t guarantee my medical bills are paid if I need a knee replacement down the line for playing football for the school.”

Big picture, what would a college athlete union mean for campus sports?

It could mean pay-for-play. It could mean better concussion protections. It could mean an “educational lockbox” fund covering athletes’ schooling costs if they exhaust their athletic eligibility before they graduate.

Honestly, it’s impossible to say.

Three years ago, more than 300 college athletes from schools like Kentucky, Arizona and Georgia Tech signed a petition asking the NCAA to consider the lockbox concept. The NCAA responded with a boilerplate written statement claiming that it “redirects nearly all of its revenue to support student-athletes” — and otherwise did nothing. Enter a union, and all of that changes. Schools would have to listen their athletes, treating them like partners, not serfs. As I’ve said before, the most important thing about something like CAPA isn’t particular athlete demands; it’s athletes finally having the right to make them. The right to speak up, be heard, assert agency and power. Just like everyone else.

Read the original article at Sports on Earth