Northwestern Unionization, NCAA Recalibration Preposterously Overdue

Northwestern Unionization, NCAA Recalibration Preposterously Overdue
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RCEd Commentary

A regional director of the National Labor Relations Board ruled last week that Northwestern University’s football players receiving “grant-in-aid” scholarships had the right to vote to form a union for the purpose of collective bargaining. Appeals are yet to come, but if the ruling is upheld, this will be a big one.

There are three things you need to keep in mind.

The first is to make sure to keep your eye on the (right) ball. The most significant dimension of the ruling is that Northwestern’s scholarship football players are employees of the university, not just student athletes. Some of the commentary has focused on the question of unionization. It’s not the central issue. Why? NLRB only has jurisdiction over private organizations like Northwestern. Its reach does not extend to public universities like Texas or Alabama. Even if it did, remember that not every college football team will want to form a union or have the legal option to do so. Quite a few of them are public institutions located in states that do not allow bargaining for public employees. Nonetheless, if the NLRB ruling forces a recognition of the obvious – that football players in big time programs are hired performers in a lucrative entertainment industry – a host of employment laws will then apply to players everywhere that don’t apply today.

The second thing is to ask why this happened in 2014 rather than at some point in the past. Many of the circumstances between players and universities that drove the Northwestern ruling have been common for decades. The simplest answer is that smart players like Kain Colter have been paying attention to revelations about the long term risks of playing football, including the recent NFL concussion settlement. They know that medical coverage for college athletes extends only one year beyond the player’s service to the team. Players whose injury symptoms arise later are out of luck. That’s a pretty bad bargain for athletes engaged in such a dangerous game. It’s worth remembering that Colter suffered a significant concussion on his second snap of the 2013 season.

Or consider what happens when a player wants to transfer. Coaches can – and do – invent all sorts of restrictions on where they will allow a player to go.  Meanwhile, the coaches themselves defect at will – almost always for reasons directly related to compensation. That’s because coaches are employees with structured contracts and buyout clauses. Their employers cannot invent conditions, ex post facto, to prevent dissatisfied coaches from finding a better job.  

These are exactly the types of workplace injustices that inspire collective action. They are the situations where unions have historically made remarkable contributions. Today, teachers unions have earned ignominy by bargaining for hard-to-defend clauses such as elective plastic surgery. But decades ago, unions were asking why teachers couldn’t have a paid, duty-free lunch, why female teachers could not be paid the same as male teachers, and why a teacher’s political persuasions were relevant to her instructional prowess. The employment landscape for teachers had become embarrassingly outdated, and unions were a force for positive change.

How many employment landscapes are as outdated as the elite levels of NCAA college football?

The third and final thing is to acknowledge that this is a moment for celebration. As far as unionization battles go, it’s hard to find one as dignified on all sides as Northwestern’s. Throughout the process, Colter has had incredibly positive things to say about his playing experience and his coach, former Wildcat star Pat Fitzgerald. Likewise, there have been no whisper campaigns from the university about Colter, his motives, or his actions. Both sides deserve tremendous credit for the dignity with which they have conducted themselves. The business element of college football is typically obscured by rah-rah fanaticism and nonsense about the purity of amateur athletics. Here, we were treated to a frank examination of how the business really works, courtesy of a gutsy young man who has been a case study in class on and off the field. It turns out that student-athletes are still learning something on campus after all.

Anyone who claims to know how the Northwestern case will play out is bluffing. Be skeptical of hyperbolic predictions about schools dropping athletics programs or players going on strike before big games.  If major college football players are defined as employees, they are still employees in a popular, profitable industry that brands universities and attracts students even in the years when there is no BCS berth. Other professional leagues have learned to navigate player rights, compensation, and long term medical care, and at last check, no NFL team had initiated a wildcat strike prior to the conference championship kickoff.

Time will tell. But a recalibration in the relationship between the NCAA, its universities, and its athletes is preposterously overdue. Kudos to Colter and others for forcing the parties to the table to begin that discussion.

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