Thursday, March 27, 2014

Some Thoughts on the Unionization of College Athletes

The recent decision by a Regional Director of the NLRB to find that Division I college football players at a private university are, in fact, employees for purposes of union organizing is potentially a watershed event for college athletics. If this decision is not reversed during the appeal process, then it will mean the end of college athletics, at least as we know them here in the United States.

Some of the early commentary on the decision reflects a view that the analysis is a tightly crafted piece of legal wordsmithing that is likely to stand up on review by the NLRB as a whole and the federal appellate courts.

I have no idea what those early commentators were reading, but I don't think it was the NLRB decision. The document itself contains what I consider gigantic holes in terms of its reasoning and legal support. It flat-out ignores certain key aspects of the college-student relationship that I think will prove fatal to the analysis on appeal. But mainly, it simply proves too much with respect to the employee status of the college athletes.

The NLRB decision uses a lot of ink detailing the amount of control the coaching staff has over Northwestern's scholarship football players. In fact, that's one of the key weaknesses of the decision-what is described throughout these paragraphs is not an employer-employee relationship, but a relationship between students and the people responsible for their education and welfare, who stand in an in loco parentis status rather than a boss status. No employer in the United States maintains the kind of control the Northwestern coaches have over their charges. To me, that argues more heavily in favor of their student status than anything else in the decision.

The Regional Director simply glosses over the key question of whether students at a university on scholarship are performing work subject to a contract of hire, for remuneration by their employer. There's no discussion about whether the scholarships and associated room and board payments even resemble wages. For example, scholarships are a fixed value, independent of the quality or amount of work performed by the recipient. Second or third string scholarship players at Northwestern get just as much money as the guys on first team. That doesn't resemble any wage scale that I'm aware of.

The Regional Director discounts the key aspects of a college’s academic emphasis with respect to eligibility, postseason activities, and the like. He notes that during certain times of the year participation in the football program involves a lot of hours, in some cases perhaps more hours than the players spend hitting the books. I have no idea whether that's true-there was no objective evidence cited for that proposition, just anecdotal testimony-but I do know that if you're not hitting the books to a certain degree, you can't play. So whatever the emphasis on scholarship, it is in a very real sense at least as important as athletics given that your athletic performance does not determine your scholastic eligibility, but rather, the other way around. Graduation rates also dictate postseason play, a concept totally foreign in any employment relationship.

Even something as fundamental as the burden of proof in the case is contorted in the Regional Director's analysis. I'm unconvinced that a group of people who walk into an NLRB office claiming to be employees can somehow shift the burden of proof instantly to the target employer, which then must put on evidence to show that, whatever the claims, these people are not employees.

It will be very interesting to see what happens to this case on appeal. But for a minute, imagine the impact if college players are found to be employees rather than students. The value of their "wages", i.e. their tuition, books, living expenses, etc., becomes instantly taxable. Moreover, the fact that colleges would be free to pay additional "wages" would, in a real sense, very quickly spell the end of college athletic programs at a number of universities that simply would not be able to compete with the economic prowess of the major college football and basketball schools. It might also mean the end of most nonrevenue sports, because the dollars flowing into those sports from the football/basketball programs would have to be diverted to maintain the football or basketball edge.

Unlike some other commentators, I don't think this decision has a very good chance on appeal. And if nothing else, I would expect a legislative fix to be engineered if it appears likely that colleges are going to lose a big chunk of that $11 billion of annual revenue they receive from their athletic programs. But if it does survive, I think we can say goodbye to most if not all of the practices that we recognize as integral to college athletics today.

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