The Northwestern Players' Union: What Does It Mean?

As you have no doubt heard by now, the National Labor Relations Board, or NLRB, has decided to recognize the College Athletes Players Association, or CAPA, as a potential union representing all Northwestern University football players who (1) receive an athletic scholarship and (2) have eligibility remaining. SB Nation's own Jason Kirk has a good summary of the decision (which you can read in full here) at the above link, but here are a few key points to take away:

• Northwestern players devote 50-60 hours a week to conditioning and drills during the preseason training camp. And during the season, they devote 40-50 hours a week to football, even though the NCAA caps mandatory in-season practice at 20 hours a week, by holding "voluntary" workouts in the evenings that are "arranged" by position captains rather than the coaching staff. After an "optional" few weeks post-bowl-game (where S&C coaches watch workouts and senior players take attendance), the team eases into spring ball, which has 20-25 hours a week of practice, followed by another "optional" period before summer workouts, again with 20-25 hours a week of practice, begin. Northwestern is almost certainly not alone in making these various "voluntary" workouts essentially required, and thereby getting around NCAA hours limitations.
  
  
• Kain Colter, who hoped to go to med school, was told by the coaching staff that he shouldn't take a required chemistry class that conflicted with football practice. As a result, he had to take the class during a makeup summer session, and he fell behind his cohort of fellow premeds. He ended up switching to a psychology major because he did not believe he could make up the lost ground in time. (Think about that: Northwestern told its football players not to take classes necessary for their majors. Imagine what it's like at an actual football factory.)
  
  
• That said, Northwestern appears to have treat its players far better than the oversigning factories of the world. Every player is guaranteed a four-year scholarship rather than the standard year-by-year renewal; scholarships are still honored if players fall to the bottom of the depth chart due to lack of talent; scholarships are still honored if players suffer a career-ending injury; and players who take a redshirt year are guaranteed a total of five scholarship years. Pat Fitzgerald and his staff do not play games with greyshirting, encouraging subpar players to quit to free up a scholarship (though, as the ruling points out, they're allowed to do so per the terms of Northwestern's scholarships), or cutting people for no discernible reason. (Only two Northwestern football players have had their scholarships pulled in the last five years, according to the ruling: one for firing a BB gun in the dorms, and another for repeated violations of the school's drug and alcohol policy.)
  
  
• The NLRB officer holds that players who receive grant-in-aid scholarships are not "primarily students," a designation that would prevent them from being employees able to unionize. To the contrary, the officer holds that because players spend vastly more time engaged in football-related activities than academics, they are primarily football players, and only secondarily students. Additionally, the officer notes, the players receive no academic credit for playing football, unlike some student employees (e.g., grad students who work as teaching assistants) who are barred from unionizing because their work is a required part of their degree program. As a result, the players are classed as employees, and are allowed to force an election on whether a union should be formed.
  
  
• The officer also takes note of the fact that football scholarships are not simple financial aid, in that they are not generally available to everyone. (In the grad student case that Northwestern strongly relied on, the stipend TAs received was the same as the stipend graduate students who didn't teach received, meaning it could be classed as financial aid.) This has an important effect: walk-on football players are not allowed to join the union.

So, what does all this mean, both for the MAC and in general? Well, here are some questions and answers.

Does this mean Northwestern is going to have a football players' union tomorrow morning?

No, for two reasons. First, Northwestern is going to appeal. This decision will first go up the chain in the NLRB (eventually to the five-person Board itself, rather than regional officers), and then will surely make its way through the courts. It could be years before there's a final outcome on whether the players are legally considered employees. Second, even if the legal question is ultimately decided in CAPA's favor, the players (whoever they may be by then) still have to hold an election. And there's always the possibility that they'd vote not to unionize.

Does this ruling have any effect on MAC schools?

No. In the first place, it's far from a final ruling, as explained above. More importantly though, the National Labor Relations Act doesn't apply to state employees. Instead, each state has its own version of the Act (and a corresponding version of the NLRB) that hears labor/management disputes with state employees. Of course, every school in the MAC is a public school, so no matter what the decision ends up being with respect to Northwestern's players, it's not binding on the state boards that would decide whether MAC players are employees. (It could certainly be very persuasive authority for the state boards, though, which is why the NCAA is pushing so hard to fight this even if the immediate effect would only be at a small number of private schools.)

What about non-revenue sports like wrestling or track?

This ruling only applies directly to scholarship football players at Northwestern. No other athletes at Northwestern have sought permission to unionize, and to my knowledge, no athletes at other schools, public or private, have gone down this road. But the ruling does have some clues. First, if an athlete has an athletic scholarship, that certainly appears to count toward "employee" rather than "student." But the biggest factor the officer noted was the sheer amount of time spent on football. Sports that are less time-intensive -- which non-revenue sports may be simply because of budget constraints -- are less likely to have the employee/student balance tipped in favor of "employee." (This is not to denigrate people who participate in non-revenue sports, far from it. Just to point out that without the football money, they're less likely to have the infrastructure to support constant fifty-hour weeks.)

If Northwestern players do form a union, will they stop playing non-unionized schools?

Assuming no other Big Ten schools unionize, this course of action would absolutely result in Northwestern getting the boot from the Big Ten, so no. And they surely wouldn't stop playing other non-unionized schools either, because those schools could refuse to schedule Northwestern in other sports where unions aren't an issue. In any event, the players' goals (which you can find here) don't include boycotting non-unionized teams. So MAC schools playing Northwestern should be safe.

What about the cheerleaders, the band, the mascots, and the dance team?

If they receive scholarships not generally available to others, then they again run the risk of ending up classed as "employees" should someone want to fight about it. But two factors make this very unlikely. First, at many schools, you can receive academic credit for these activities (I know the marching band did at Miami), and the hearing officer's ruling specifically noted the fact that Northwestern football players don't get credit for playing. Second, from an economic standpoint, the schools would probably just stop giving out cheerleading or band scholarships if they see this as a real risk. If you stop offering football scholarships, you're not going to get the best cornerback in the country, and fans will notice. If you stop offering band scholarships, you're not going to get the best flautist in the country, but that person was going to Julliard anyway, not joining your marching band.

So are they going to get paid?

That's not the goal of the Northwestern unionization movement, with the exception of getting a small stipend to reflect actual cost-of-attendance, which is often a few thousand dollars more than the scholarship amount -- a difference that can be huge for some athletes. (Again, check the list linked above, which is pretty detailed about what they're after.) And Kain Colter's statement released this afternoon makes no mention of expanding this to a fight for payment. But yes, unionization drives at other schools could work toward pay-for-play. In my opinion, though, unionization is a bad way to accomplish this, because the players who have visions of dollar signs in their heads aren't the kinds of guys who would be happy getting the same paycheck as every other freshman on the team, a likely pay-for-play plan given the way college athletics works. (The NFL system wouldn't work in college because of the vast difference between the draft and the recruiting process. If players want to be paid according to their perceived talent, they should abandon unionization and just try to sell their services to the highest bidder.)

Any unintended consequences?

Two things jump out at me. First, if players start forming unions, that could effectively gut the O'Bannon litigation, an antitrust case brought against the NCAA by current and former players seeking payment for the use of their names in merchandising. There's an exemption to the antitrust laws when an employer deals with unionized employees, which is why the NFLPA had to "decertify" a few years ago before filing its antitrust suit against the NFL. If all the college teams unionize, there's not an antitrust violation going forward, and going forward is the more important part of the case.

Second, if players are employees, does that mean their scholarships are taxable wages rather than grants-in-aid? I'd love to hear from a tax lawyer on this, but if I'm a football player, I'd rather just get my scholarship and not worry about paying taxes, thank you very much.

Any other questions? Let me know in the comments, and I'll answer as best I can.