“Pay for play has no part in the amateur setting,” Purdue athletic director Morgan Burke said last week in a statement on behalf of the Division IA Athletic Directors’ Association, the organization representing all 351 Division IA programs. Burke’s statement was an indirect response to the “All Players United” protest that surfaced the previous weekend. Several players wore the letters “APU” on their uniforms in support of the National Collegiate Players Association (NCPA), a nonprofit organization that claims to “provide the means for college athletes to voice their concerns and change NCAA rules.”
The NCPA stops short, however, of advocating pay-for-play as some media pundits and other NCAA critics desire. While there’s no universal definition of pay-for-play, proponents tend to focus on the lack of employee status or traditional wages for student-athletes. The NCPA’s own “mission and goals” statement advocates additional scholarship, medical and due process benefits for student-athletes but does not demand universities re-classify football or basketball players as employees.
College Football Players as State Bureaucrats?
This is an important distinction, as some might view the NCPA as a budding labor union for student-athletes. Even if that is the NCPA’s real agenda, unionization of college players is simply not practical under the existing American labor law system. Unionization is a specific process governed by the National Labor Relations Board (NLRB). Professional athletes unionize so they may collectively bargain with leagues, which are themselves a cartel composed of individual clubs. In labor-speak, the leagues are “multi-employer bargaining units” that may negotiate a single labor contract with a recognized union without violating federal antitrust law.
Most Division IA members are state universities, not private businesses. That is to say, anyone who works for a state university is a government employee. And federal law does not recognize the right of state government employees to unionize. It’s up to each individual state whether to grant its employees such rights.
Some states already permit some public university employees to unionize under certain conditions. Others do not. (And my guess is most, if not all, states within the SEC footprint do not.) This lack of state-to-state uniformity may not matter when it comes to academic or support personnel, but it would prove disastrous to intercollegiate athletics. Would schools from unionized states want to compete in, or be in the same league with, schools from non-unionized states? Remember, the NFL’s 32 clubs operate under one labor agreement—one set of rules for everyone. That would never be the case in college football under existing labor law.
Separating “Employee” and “Student-Athlete”
Ah, but what about private schools like Vanderbilt or Southern California? Federal law treats private universities like any other private employer. Employees there could form a union today without the State of Tennessee’s permission.
But this raises another issue. Only employees may unionize. That means “employees” as defined by the NLRB, not sportswriters who angrily insist student-athletes are really employees. And a controversial 2004 decision by the NLRB suggests the agency might not recognize student-athletes as employees.
In 2001, an NLRB regional director held graduate teaching assistants at New York University could elect to form a union. But three years later, on an appeal from Brown University, the NLRB reversed the NYU decision by a 3-2 vote. The NLRB majority noted that unlike employees, teaching assistants had to remain enrolled as graduate students at all times. Consequently, any money they received was really financial aid rather than “consideration for work.” The NLRB said it was reluctant to “intrude into the educational process” by imposing a collective-bargaining relationship under these circumstances. (In recent years some NLRB officials have called for a reversal of the Brown University decision, but it remains valid law as of today.)
Critics may scoff at the comparison of teaching assistants to football players. But there’s a reason the NCAA calls them “student-athletes.” As long as participation in sports is directly tied to academic standing, and the NCAA limits compensation to scholarship grants, then there’s a strong case that student-athletes are not employees for purposes of labor law.
Do the Players Even Need a Union?
Okay, so unionization may not be an option for college football players. But couldn’t the NCPA or another group simply stage a series of boycotts—i.e., wildcat strikes—until the NCAA agreed to certain reforms? Sure, but depending on the form of the boycott, there may be some legal risk to the players and their supporters.
If we’re just talking about student-athletes staging a sit-in or refusing to play in a bowl game, that’s one thing. But wildcat strikes are not a legal substitute for the collective-bargaining process. The Federal Trade Commission, which enforces federal antitrust law, has long held non-union groups may not jointly attempt to influence private contract negotiations. For example, the FTC has said independent physicians—that is, doctors who aren’t employees of a specific hospital—cannot make a joint agreement refusing to deal with an insurance company. Similarly, if the NCPA tried to influence individual student-athletes not to sign a National Letter of Intent unless a school (or the NCAA as a whole) agreed to certain conditions, the FTC could declare that an antitrust violation.
Even if the NCAA voluntarily agreed to such a deal with a non-union group, any dissenting party could still file an antitrust lawsuit. Remember, the NCAA once acted as a television cartel on behalf of all members until Georgia and Oklahoma sued—and ultimately prevailed in a landmark Supreme Court decision. Of course, an antitrust lawsuit might also serve as a vehicle to impose new working conditions under the guise of a settlement, but that’s hardly an ideal option for anyone (except antitrust lawyers).
Placing Blame Where Blame Is Due
Finally, it’s worth noting that unionization is the cause, not the solution to, the financial conundrum facing student-athletes. Big Ten Commissioner Jim Delany hinted at this in his own statement last week, when he said, “Maybe in football and basketball, it would work better if more kids had a chance to go directly into the professional ranks.” Those ranks are closed to football players, however, due to collective bargaining agreements.
The NFL requires all new players to go through the draft. But no player can enter the draft until three years have elapsed since his high school graduation. The NFL Players Association—the NLRB-recognized union representing the league’s current and future players—ratified this age limit as part of the 2011 collective bargaining agreement, which lasts for ten years. Thus, it is the NFL and its union that is keeping college underclassmen from getting “paid to play,” not the NCAA and its member schools.
The NFLPA has no incentive to challenge the draft or age restrictions. After all, the union’s voting membership consists exclusively of current players. Federal labor law gives them not just the right, but effectively the duty, to maximize their own gains at the expense of future employees who will compete for limited roster spots and salary cap room.