Last October, I wrote that “unionization of college players is simply not practical under the existing American labor law system.” But that didn’t mean someone wouldn’t try.
Recently, football players at Northwestern—backed by the United Steelworkers—filed a petition with the National Labor Relations Board for recognition as a union. This set off a predictable round of cheers from the anti-college football media, who yet again declared the NCAA’s demise was just a matter of time.
But is the Northwestern players’ action really a game-changer? Here are some reasons for skepticism:
1. You can’t just call yourself a union. In the United States, “union” has a specific legal meaning. It is a group of employees recognized as a “collective bargaining unit” by the NLRB. Obviously, that’s why the Northwestern players filed a petition with the NLRB.
The big question the NLRB must answer is, “Are college football players ‘employees’?” Northwestern and the NCAA will argue they’re not. As I noted in my earlier article, the NLRB faced a similar question in 2004, when it decided graduate teaching assistants were not “employees.” In that case, the NLRB didn’t want to convert the inherently academic relationship between a university and its graduate students into a labor-management conflict. The NCAA and Northwestern will press the same argument here.
2. As with all government actions, nothing happens quickly. It will take years to resolve the legal status of football players. An NLRB official in Chicago will hold a preliminary hearing on the Northwestern petition. That decision will then be reviewed by the full NLRB in Washington. That decision may then be reviewed by a federal appeals court in either Chicago or Washington. And that decision may then be reviewed by the U.S. Supreme Court. In other words, this is going to take a few years.
3. Even if the Northwestern players succeed, the impact will be limited. It actually makes sense that Northwestern is the test case for college football unionization. Illinois is a rabidly pro-union state. Northwestern has a number of high-profile alumni in the sports media. The football program is stable under Coach Pat Fitzgerald—who is publicly supporting the unionization petition—and, most importantly, it’s a private school.
This last point is lost on some media folks who see Northwestern as a leader for the rest of the country. All but a handful of Division I FBS programs are public (state-run) universities. State employees have no right to unionize under federal law. It’s up to individual states to decide which of their employees may form a union and under what conditions. So even if Northwestern players eventually win union status, the only other power-conference programs that could take advantage of that decision would be Southern California, Stanford, Notre Dame, Miami, Baylor, Duke, Boston College, Wake Forest, Syracuse, TCU and, of course, Vanderbilt.
4. And who will the unions negotiate with? It’s all well and good if Northwestern players unionize and negotiate new working conditions with the university. But what happens when Northwestern agrees to terms that violate NCAA or Big Ten rules? Northwestern may simply find itself out of a football conference.
The NCAA is not structured to negotiate labor agreements. And the power conferences are unlikely to negotiate special deals with one or two schools that may have unions. The SEC is not going to make any special accommodations for a hypothetical Vanderbilt players union.
5. This is about lawyers, not players. Like the Ed O’Bannon antitrust lawsuit against the NCAA—another crusade breathlessly championed by the sports media—the Northwestern unionization effort is more about making lawyers money than helping starving students. Union lawyers see Northwestern and the NCAA as shakedown targets. In the end, the lawyers are exploiting the players just as much as the colleges.
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