By Amanda Becker
Feb 9 (Reuters) – Football players at Northwestern
University have kicked off a daunting, but not necessarily
impossible, drive to become the first U.S. college athletes to
unionize, starting a legal process with the potential to
redefine college sports.
Wildcats quarterback Kain Colter has teamed up with Ramogi
Huma, a former University of California-Los Angeles player
turned activist, to form the College Athletes Players
Association (CAPA), a first-of-its-kind labor union.
CAPA has asked the National Labor Relations Board (NLRB) to
schedule an election so Colter and his teammates can vote on
whether they want union representation. The agency is due to
hold a preliminary hearing on the matter this month in Chicago.
In deciding whether an election is warranted, the NLRB must
answer a question that has dogged college athletics for decades.
Are players only students or are they effectively employees?
College sports is immensely profitable for schools, coaches,
boosters, conferences and commercial interests. The National
Collegiate Athletic Association (NCAA), which organizes sports
programs for roughly 420,000 college athletes, reported $872
million in 2012 revenue, according to an audited statement.
If the NLRB decides that players are employees who have a
right to unionize, “it’s going to turn college athletics on its
head,” said Joseph Farelli, a labor lawyer at the firm of Pitta
& Giblin who has represented both employers and unions.
The board has never considered this issue before, said labor
lawyers. A spokesman for the NLRB said he was not aware of any
previous case and declined further comment because the issue is
pending.
Any NLRB decision on the Northwestern case would only apply
to athletes at private universities because the board has
jurisdiction only over private-sector labor relations.
LONG HAUL AHEAD
The Northwestern Wildcats are historically underdogs on the
football field, but the players may be executing their
unionization play at a favorable time.
Under U.S. President Barack Obama, the NLRB is controlled by
Democrats, the party friendliest to organized labor, which
supports CAPA. The NLRB’s record suggests it may be open now to
declaring certain groups of students to be employees.
CAPA has said it aims to ensure that players get medical
coverage for sports-related care, to improve graduation rates,
and to push for fair compensation. University and NCAA medical
insurance generally does not cover players’ sports-related
conditions that continue after they leave college.
An “overwhelming majority” of the team’s roughly 85
scholarship players has expressed interest in unionizing,
according to CAPA.
A decision favoring the players would be an incremental
victory, labor lawyers said, but it would almost certainly be
subjected to a long legal appeals process, making any widespread
unionization of college football a distant prospect.
The NCAA has said in a statement that the Wildcats players
are part of a “union-backed” power grab that will undermine
their educations.
Northwestern has said it is proud that its students are
raising issues about athlete safety, but that unionization and
collective bargaining are not “appropriate.”
“At Northwestern, students who participate in NCAA Division
I sports, including those who receive athletic scholarships, are
students, first and foremost,” university spokesman Alan Cubbage
said in a statement.
“Participation in athletic events is part of the overall
educational experience … not a separate activity.”
SPORTS IS BIG BUSINESS
College sports programs generate billions of dollars in
revenue for the NCAA, based in Indianapolis, and its member
universities. Players are barred by association rules from
receiving a cut of the proceeds, or from drawing a salary.
The NCAA gets $770 million a year under a 14-year, $10.8
billion deal from CBS and Turner Broadcasting for the rights to
show the NCAA’s annual “March Madness” basketball tournament.
ESPN pays the association $125 million a year to show its
Football Bowl Championship games, according to media reports.
The NCAA in turn distributes revenue to individual schools.
Northwestern, for example, got $27.5 million in revenue from
its football program and $11.7 million from its basketball
program in the 2011-2012 season, according to U.S. Department of
Education statistics compiled by CAPA and Drexel University.
The university’s head football coach took home about $1.3
million in 2012. His players each got athletic scholarships
worth about $56,500 that fell several thousand dollars short of
the full cost of attendance, said the CAPA-Drexel report.
Huma and Colter are quick to emphasize that the union push
was not prompted by any mistreatment by the university, located
in Evanston, Illinois, on Lake Michigan just north of Chicago.
CAPA, Huma said in an interview, only wants the NLRB to look
at the “facts” and “accurately recognize this as an
employer-employee relationship that gives the players labor
rights.”
Colter, in a statement provided by CAPA, asked:
“How can they call this amateur athletics when our jerseys
are sold in stores and the money we generate turns coaches and
commissioners into multi-millionaires?”
Labor unions are backing the players. The United
Steelworkers union has said it will cover CAPA’s legal expenses.
Richard Trumka, president of the AFL-CIO, the largest federation
of U.S. labor unions, has offered verbal support.
EMPLOYMENT RELATIONSHIP?
CAPA’s future, for now, is in the hands of the Chicago
office of the NLRB, a federal agency that oversees
private-sector union elections and polices unfair labor
practices. At the upcoming hearing, the university and the union
will argue over whether the players exhibit the type of
relationship with the university that workers typically do with
employers.
Standard benchmarks include the extent to which an employer
controls an employee’s schedule; the discretion the employer has
in hiring and firing; and evidence of compensation.
“Schools dictate where players can live, what they can eat,
whether or not they can even leave a hotel during a trip, their
off-season schedules,” Huma said.
The NCAA has indicated it will defend its long-standing
position that college sports participants are not employees, but
“student athletes.” The organization began using this term after
two state courts in the 1950s and 1960s found that scholarship
students who died while performing athletic duties were
effectively college employees with workers’ compensation rights.
Since then the NCAA has largely blocked further workers’
compensation claims, said a Buffalo Law Review analysis.
“There is no employment relationship between the NCAA, its
affiliated institutions or student-athletes,” NCAA Chief Legal
Officer Donald Remy said in a statement.
Some lawyers said the closest analogy to the college
athletes’ situation may be the NLRB’s treatment of graduate
students who have tried to unionize. The board has evaluated
whether graduate students’ work for their colleges is incidental
to their education, or whether it renders them employees.
The NLRB’s decisions on this issue have vacillated, as board
control has shifted from one political party to the other. “It’s
very political, it’s not unusual for the law to change as you
change administrations,” said labor lawyer John Lomax at the
firm of Snell & Wilmer.
Athletes differ from graduate students in at least one
important respect, said Foley & Lardner lawyer Jon Israel.
“They’re given a scholarship – compensation – in return for
services that have nothing to do with academics, it’s entirely
based on football,” Israel said.
(Editing by Kevin Drawbaugh, Howard Goller and Tiffany Wu)
