LawPulse

What might the NLRB ruling in favor of Northwestern football players seeking to unionize mean for the players - and for collegiate sports? Lawyers for labor and management opine.

As unpredictable and unprecedented as it was that some players on Northwestern University's football team decided they needed a union to secure better benefits for themselves, the decision in March by the regional director of the National Labor Relations Board ("NLRB") in support of those efforts was even more surprising.

Labor lawyers (not to mention members of the public), irrespective of their opinion on the matter, never imagined that members of a collegiate sports team, receiving valuable four-year scholarships, would be deemed "employees," as the NLRB's regional director in Chicago, Peter Sung Ohr, characterized the players. Northwestern appealed that decision to the five-member NLRB panel in Washington, D.C., which has agreed to hear the case. Meanwhile, on April 25, eligible team members cast yea or nay votes on whether they wanted to be represented by the United Steelworker's union, but those ballots will not be counted until the appeal is decided.

Experts expect the Washington panel to uphold the regional director's decision. Still, it will take years of legal wrangling before a final decision is made. Whether the recent events are a bellwether of change in the way private college sports teams are run is of course the obvious question. But the issues are attention grabbing.

"When I first heard about this [effort], I laughed and thought someone is getting their 15 minutes of fame and then it will flame out," said Chicago labor lawyer Travis Ketterman, who represents construction worker unions. "Four months ago, not in my wildest dreams did I think we'd be having this conversation." He's pleased, though, that this very public discussion about unions is taking place, noting that workers might begin thinking about their need for union protection.

Understanding the complicated nitty-gritty of what a unionized team would look like is daunting, but Ketterman believes Ohr got it right on the fundamental issue; that the amount of control Northwestern and other Big Ten private teams have over their players is immense. Among the requirements and rules imposed on players outlined in Ohr's decision are restrictions on classes they can take if they conflict with practice time, which averages about 50 hours a week; when, where, and how much they can eat; where they can live; how they must behave in public; and even their use of social media, including a requirement that they accept friend requests from coaches.

Strict disciplinary action is taken against players who violate the rules. But many of the rules were put in place by the National Collegiate Athletic Association ("NCAA"), a fact that prompted some to suggest that the players' issues should be taken up with the NCAA.

There is a lawsuit pending against the NCAA by players seeking a piece of the billions of dollars the association has made from college football and basketball in the power conferences. The players in the suit are also seeking permission to use their likeness and image for profit.

Workers' comp for players?

Some scoff at the idea that the players need a union. After all, they receive scholarships at Northwestern of approximately $70,000 a year to cover tuition, room, and board. But, Ohr notes that "[m]onetarily, the Employer's football program generated revenues of approximately $235 million during the nine year period between 2003-2012 through its participation in the NCAA Division I and Big Ten Conference that were generated through ticket sales, television contracts, merchandise sales and licensing agreements." The NCAA prohibits players from any share of that revenue.

Ketterman said that despite the concerns raised by some management-side attorneys, "the topics [that will be negotiated should a team become unionized] will be very narrow." Health coverage could improve for the athletes, and players who suffer a disability while playing might be given disability coverage after they graduate. The students might be able to make decisions about where they live and be given accommodations on class scheduling, and generally be less controlled every hour of every day, Ketterman said.

The biggest issues would involve workers' compensation and taxation of the players' scholarships. "If we call these players employees, the natural outflow is if they're injured playing, they have workers' comp coverage," he said. This could substantially raise the rates private universities now pay since injuries are routine as compared to injuries in classrooms and other sports.

Would the students' scholarships need to be taxed? Ketterman believes the IRS could do a workaround on this and prevent the taxation of scholarships.

"How this will affect football, I don't really know," Ketterman said. "But I think top notch programs are going to attract top notch players." But the answers probably won't be known before today's grade-school aged children begin receiving offers to play since the procedural process will likely involve years of court battles, he said, which could include a ruling by the U.S. Supreme Court.

NLRB governs private, not public, universities

James C. Franczek, Jr., one of the most powerful labor lawyers on the management side, who negotiates on behalf of the City of Chicago with unions from nearly every city agency, including the public schools, acknowledges that the players raised some very legitimate issues. "The fundamental problem, though, is that they're really attacking the wrong target with the wrong strategy."

He noted that only 17 private university teams are subject to the NLRB, while 100 or so other Division 1 public university teams are subject to state labor laws. If the NLRB rules in favor of the players, how might the recruitment of high-school players be affected? Could the tenders change substantially? Will schools offering four-year scholarships, as Northwestern now does, switch to one-year tenders?

Regional Director Ohr could have made the argument that the players are temporary employees who are getting a superb education at one of the nation's most prestigious university's, Franczek said. "He could have just as easily written an equally convincing decision going on the other side of the equation."

Ohr distinguished his ruling in this case from a case involving graduate assistants at Brown University who tried to organize. In that case, the assistants lost because the NLRB held they were being supervised by faculty members and were getting an education and stipend in exchange for their teaching duties. Academic faculty members are not overseeing the athletic duties that the players perform, Ohr noted. Will schools reclassify coaches as faculty members, Franczek and Ketterman wondered?

The long litigation road ahead

Procedurally, a number of things would have to happen before Northwestern or any private team could engage in collective bargaining. First, the NLRB in Washington would have to uphold Ohr's ruling. If they do, the ballots cast by the Northwestern players will be counted and if the yea votes outnumber the nay votes, Northwestern would, in theory, have to begin negotiating with the team members.

But expect the university to appeal, taking its case to either the U.S. Court of Appeals for the D.C. Circuit or the federal seventh circuit in Chicago. If the appellate court rules that student athletes are employees, Northwestern could still appeal to the U.S. Supreme Court.

"More likely than not, every football player will have graduated and a whole new set of football players that had no input into whether or not they want a union will be in place," Franczek said.