By now, every collegiate sports fan is aware that the National Labor Relations Board’s Chicago regional office has declared Northwestern University college football athletic scholarship recipients eligible for union representation. The decision has raised the usual chorus of cheers and criticisms that arise whenever and wherever unionization comes up. One also hears support for the regional director’s ruling from those who view Big Ten football programs as the NFL in disguise. A lot of ink has been spilled repeating his finding that between 2003 and 2012, the Northwestern football program earned $76 million more than it spent.
The decision, however, should get a failing grade both legally and as a matter of public policy.
Legally, the decision mentions, but rushes past the issue of whether the athletes’ arrangements with the university are “contracts of hire”; a prerequisite to the director’s decision that the athletes are really common law “employees” and so fall within the scope of National Labor Relations Act’s coverage. The analysis of the “employee” question is shallow and simplistic.
The regional director notes that the players do not get paid in the common sense of the word; they get a scholarship, but he simply equates this to pay. His bland assertions in this regard should have been more carefully considered. He notes that the “pay” varies depending on the cost of providing the scholarship and on the cost of the education. However, he ignores the fact that individual student educational costs can differ depending on, for example, the student’s decisions about what major course of study to pursue. It costs more to educate a student pursuing a science or engineering major than one studying history or political science. This variation in cost is not within the university’s control; it a function of the student athlete’s personal choice.
Additionally, as was mentioned in the director’s decision, the scholarship continues even if the athlete is rendered permanently unable to play because of injury, indeed a critical difference between the status of an employee at common law and the college athlete attending school on a scholarship.
The regional director’s analysis also fell short in considering the community of interest between the scholarship and non-scholarship athletes. He simply finds that there is no community of interest on the team that might negatively be impacted by the scholarship athletes’ deciding to unionize, a right that would not be open to the non-scholarship players. In reaching that conclusion, he ignored the educational component of participation in college sports. Collegiate athletics is not just an economic exercise. If it was, there would not be any non-scholarship athletes. It is a team endeavor where young men and women learn to work together toward a common goal. Where they learn to work as a team, where some learn to lead and some learn to subordinate their personal goals to further the team effort. The objective is not to make money, but to win a game for the moral benefit of the institution, as well as the good of the team and the individual player’s satisfaction.
To introduce a union that represents only a portion of a team’s players, that is required to focus on the terms and conditions of “employment” for its members to the exclusion of other considerations and that does so through maintaining an adversarial relationship with “management,” is destructive of the educational reasons that support the existence of collegiate athletics in the first place.
The decision was questionable in its legal analysis, its public policy implications are even more disturbing; need even deeper consideration.
Collegiate sports critics have had field day, but they ignore the fact that at Northwestern most of the extra money made by the football team is spent to subsidize the university’s non-revenue producing athletic teams, including all of the women’s varsity teams; in fact, every other sports team that Northwestern fields besides men’s basketball.
Commentators and the regional director ignore the even more important fact that athletic scholarships provide many underprivileged young men and women a chance to get a college education that would otherwise be beyond their reach. The regional director’s cheering gallery seems to have forgotten about the athletic scholarships given to players on the non-revenue producing teams as well as those handed out by smaller private colleges where no “team” is a significant overall financial boon to the school; may even be a dead loss from a money perspective, but where the players are still enabled to obtain that college education which is so vital a commodity in today’s workplace; so important to individual social mobility.
If the NLRA is introduced to college sports, it will not be limited to money-making Big Ten football or similar programs, but will apply to every private university, however small, that trades a free education to its athletes in return for their participation on the sports field. In those cases where athletics do not provide a significant, or even any, financial benefit to a school, is it too great a stretch to postulate that those schools will likely kill athletic scholarships, rather than struggle with the additional costs and headaches that unionization would entail? Is it too hard to imagine that one more path to higher education will be removed from the reach of our poorest kids?
And has anyone considered the impact of finding college athletes to be “employees” on the panoply of other federal and state employment laws. Will college athletes be entitled to overtime wages? Will OSHA be making the decisions on athletic health and safety issues? Will athletic teams be required to report their racial and ethnic makeup to the Equal Employment Opportunity Commission? At what point, will regulation endanger all but the most “profitable” collegiate sports organizations? These policy issues need to be seriously considered before the NLRB is allowed to take jurisdiction of college sports teams.