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.

New BCS Playoff?

May it come to pass.  Or run.  Or option.  Just get it done.

Paying College Athletes?

It's been a particularly brutal off-season for college football, with scandals at North Carolina, Ohio State, and Miami making plenty of headlines. This comes on top of the scandals that occurred in-season last year, including the heavily compensated recruitment of Cam Newton, presently enjoying a spectacular NFL debut.
And now, on top of the NCAA investigations, we have the shameless, but thoroughly understandable, pursuit of the big bucks that is conference realignment. I really think the seeds for this were set 25 years ago, when Notre Dame got its own TV contract with NBC. Once some other big football schools realized that they could cut separate deals for their games with networks, notably ESPN, and keep all that revenue for themselves, the traditional loyalty to conferences, and the interlocking relationships that made the conference alignments so secure, began to fall apart. There is no reason for Texas A&M, for example, to stay in a Big 12 conference dominated by the University of Texas Longhorn network. Similarly, BYU-a major draw in the Mountain West-saw no reason to be saddled with the small-market woes of Wyoming, Colorado State, Air Force, and New Mexico, and set out on its own. I think wrathful football gods (there are potentially many in Mormonism) may still smite BYU, but the message to other schools was clear: If you are not strong enough to have your own television network, you'd better be aligned with other schools of caliber and heft in order to compete in the sports marketing world.
As the mercenary nature of college football becomes clearer (and let me be clear, I'm under no illusion that the nature of college football has changed in the slightest in the last hundred years or so-it's always been about the money; it's just now there is a lot more of it, and it's harder to hide the machinations of the schools and the players), sportswriters start revisiting the idea of paying college athletes who, after all, are the people generating all this revenue. In other words, given that they are bringing in so much dough, shouldn't these players be treated like employees?
By any comparison, the numbers associated with big-time college athletics (i.e. football and basketball, the major revenue sports) are significant. One study reported that the average Football Bowl Subdivision player is worth about $121,000 per year based on the value of revenues received by NFL players. It's even worse for basketball, a Division I college basketball player, using the NBA's now expired pay system is worth about $265,000 per year.
But treating these players like employees, rather than "student-athletes" has some troubling ramifications. Things like workers compensation coverage, unemployment compensation coverage, unionization, etc. start coming up very quickly once you start down the slippery slope. Moreover, the payout suggestions that I've heard are ludicrous, because even the most generous student athlete payment plan doesn't approach what many of these kids receive from agents, runners, and starstruck alumni.
In other words, paying college football or basketball players is not going to reduce college recruiting and money scandals unless we are prepared to pay them at something approximating the going rate for their celebrity. And that going rate, ladies and gentlemen, is really high. I'm talking Cadillac Escalade/Jaguar XJL/tricked out Hummer -land. Just to get Cam Newton in school apparently cost somebody close to $200,000. And that was before he started lighting up the SEC.
So let's approach this problem realistically-giving players a living stipend of $300 a month is not going to cut down on the sale of uniforms, favors, hookers, flashy cars, and every other type of bling imaginable. If anything, a small payment would likely make the situation worse. At least at this point, the kids know they are not supposed to be receiving money. Once the system agrees to give them something, it then becomes a matter of degree, rather than a prohibition. See Winston Churchill's classic put down over haggling about price for a more salacious explanation.
And, for whatever reason, the courts are not proving to be as friendly to the idea of these players being able to control their own likeness (like an employee could) as we might hope. Electronic Arts just won a major victory in a lawsuit alleging it improperly used a college player's likeness in sports games without his permission. A federal district court judge determined that the game maker had a First Amendment right to use the player's likeness, which outweighed his individual right to control its marketing. I think this is a terrible decision, and one that may not hold up on appeal, but it's currently occupying the space in this area.
The situation is not going to go away. The NCAA does not have the high ground here, financially or morally, and I think it's only a matter of time before teams now setting up their own conferences start setting up their own eligibility rules, as well. Stay tuned.