NLRB Official Rules Football Players At Northwestern Can Unionize
Are student athletes employees? According to an NLRB hearing officer they are, but that's hardly the end of the story.
In a decision that is likely to send some shockwaves through college athletics, politics, and legal circles, an official of the National Labor Relations Board has ruled that football players at Northwestern University can unionize:
Northwestern University football players are employees of the school and are therefore entitled to a union election, Peter Sung Ohr, the regional director of the National Labor Relations Board, said in a ruling released Wednesday afternoon.
The stunning decision has the potential to alter dramatically the world of big-time college sports in which the National Collegiate Athletic Association and the universities strike the deals and set the rules, exerting control over the activities of the players known as “student athletes.”
But now they are employees, too, according to the NLRB decision, which will be appealed.
In siding with the union, Ohr said the football players primarily have an economic relationship with the university, which controls and directs their daily activities and compensates them in the form of scholarships.
“The record makes clear that the Employer’s scholarship players are identified and recruited in the first instance because of their football prowess and not because of their academic achievement in high school,” Ohr wrote.
Football players, he said, are subject to special rules and policies that do got govern the general student population. For example, he said, freshmen and sophomore students on scholarships are required to live on campus. Upperclassmen, he added, can live off campus but are required to submit their lease for approval to their coach, Pat Fitzgerald.
“Even the players’ academic lives are controlled as evidenced by the fact that they are required to attend study hall if they fail to maintain a certain grade point average (GPA) in their classes,” Ohr wrote.
It’s worth noting, of course, that many of these restrictions and regulations that student athletes must comply with exist because of rules imposed by the NCAA, not because of specific rules set by individual schools. To a large degree, those rules are supposedly designed to ensure that the students aren’t being illegally compensated by the school, or by alumni with ties to the school, as well as to eliminate as best as possible opportunities for the games themselves to become corrupted. Why those rules, imposed by an outside body, should at all be relevant to the question of whether or not these student athletes are “employees” is, quite honestly, beyond me. Additionally, the fact remains that these are students we’re talking about here. Leaving aside the fact that at many schools athletics brings in a lot of money, at the end of the day the men and women who this ruling would apply to are college students who happen to play sports. Outside of their athletic scholarship, they get no extra compensation for being athletes and, indeed, most of them are likely to never play a sport again after college. Calling them employees for purposes of the National Labor Relations Act seems to be a perversion of the word to such an extent as to render it nearly meaningless.
As noted in the linked article, this decision is subject to appeal. As preliminary matter, it will be appealed to the full National Labor Relations Board in Washington and, beyond that, it is also potentially subject to review by the appropriate United States Circuit Court of Appeals and quite possibly the Supreme Court itself. So, this is hardly the last word on the matter and there seems a fairly good chance that this decision will ultimately end up being reversed on appeal. Nonetheless, we’re likely to see this echo through the world of college sports for some time to come, and the consequences for athletic programs at schools where revenue from sports is quite low could be dire indeed.
If college football players are employees, shouldn’t the value of any scholarships they receive be taxable as payments in kind? For Northwestern students that would be a taxable amount of something like $50,000 a year.
Dave,
Excellent question
The whole “it’s just a scholarship” argument falls when the school can withdraw the scholarship in case of injury. Clearly, the scholarship is exclusively for the purpose of playing football for the school, not to get an education. If this becomes the rule, the NCAA and universities have to only look at themselves for trying to maximize their profits instead of trying to strike a fair balance in their relation with the athletes.
@Dave Schuler:
My employer paid for my entire masters degree and that was not considered income. Employee training is generally considered a legitimate business expense.
@Stormy Dragon:
On the other hand work-study income is taxable income.
Preposterous. What would be the difference, then, with high school and middle school ? Athletics are really big in some places: football, wrestling, baseball, basketball. There are many schools that rake in the money from weekend sports. I have been in more than a few hs gyms that rival colleges; not the generic warehouse shaped buildings with retractible bleachers and moldy locker rooms that most of us did countless laps, jumping jacks, and sit ups in. So will they form a union next ?
I don’t think anyone is arguing that any payments to the players would not be taxable.
But generally speaking, any education your employer pays for is presumed to be primarily because the employer expected to benefit directly from it (e.g. my employer expected me to be a more productive software engineer with a MS in Comp Sci) and thus is not compensation per se, even if I did incidentally benefit from it.
@Dave Schuler:
I guess the football players would not smart enough to think that far ahead. If the football players are many schools are not smart enough to pass freshman level classes, why does anyone think they will be smart enough and responsible enough to complete state and federal tax returns that could end up accounting for more than$100k value of being a football player.
Also, if they are no longer students, can the university stop admitting them using different standards than the rest of the student body. If they want to be paid, then they should have to have the same GPA, SATs, and resume that the rest of the student body has to meet.
@Mu:
The scholarship rules come out of NCAA rules that limit the number of players who can be on scholarship. Div IA (old term) schools are limited to 85 scholarships. If a player cannot play or if the coach changes offenses or defenses, the coach needs the scholarships to field players who can play. The limit on scholarships was due to some schools, before limits, of recruiting player to keep them away from other schools with no plan of ever letting them play.
Also, for mens sports, football, basketball, and hockey are the only sports that have full scholarships. What does the unionization of college sports do for sports like Lacrosse or baseball where most players are on partial scholarship and some players are walk-ons.
@Stormy Dragon:
It depends if it is a condition of employment and how the employer actually pays for it. There is no way that the room and board would be non-taxable since that is just a living expense.
*winces*
@Doug: I have to disagree with you, coming down in favor of … *shudders* unions.
When I went to Grad School, I was part of the Graduate Student Union (like it or not). The School was forced to allow this — because we worked for them as TAs and Research Assistants as well as being students.
What is so different about football players? Their “Assistantship” comes with concussions, broken bones, neck injuries, and the knowledge that their school is making millions off of nothing more than their hard work. Mine came with the knowledge that I would get finger cramps (from typing) on occasion and the possibility of paper cuts.
By your logic, the TAs should not be able to unionize … but they are.
The argument “they can’t be employees because they don’t get enough cash compensation,” or because they are deprived of other rights traditionally accorded to employees, does not stand up well to examination.
@John D’Geek:
How can a university pay the football players without paying the female athletes. And how will a university look paying the women’s soccer team without paying the men’s soccer team?
I believe the end point of the push to pay college football (and possibly basketball players) will be a massive contraction in college athletes. The 50 top schools will have much bigger programs without having to worry about graduation rates, rapes of students, or non-revenue sports while all of the other schools getting out of the athletics business.
Does everyone want to give up March Madness so that Alabama and Ohio State can pay their football players?
@superdestroyer: Don’t get me wrong — I’m not a fan of Unions. But the legal logic for denying them just does not stand up. I fully expect the Female Soccer team to unionize, and the men’s bowling team and … and …. And I fully expect the Schools to eliminate the “non-profitable” sports because of said unions. Which would be Very Bad (TM). But probably not as bad as them turning collegiate sports into the massive for-profit industry that it is now.
The Law is not logical … I mean, we have lawyers, politicians, and “lawyers who are politicians” in charge, so it won’t make sense. If you deny the College Athletes who are de-facto employees, then you have to deny grad students. If you can’t deny grad students, then you can’t deny those athletes either.
Now you might be able to get away with not allowing unions for the “not de facto professional” sports — the all-volunteer, not so strictly regimented sports that are actually for fun and educational purposes (education at a University?!? There’s a novel idea!), but good luck keeping the fans interested. Remember the XFL?
But, well, to mangle a quote:
“It’s not just a Terrible Idea — it’s the Law!”
@John D’Geek:
so for the hatred of massive coaches salaries at a few schools, people are going to support a program that will eliminate March Madness, eliminate football from over 50 schools, eliminate all of the non-revenue sports (for men), and leave womens sports to a token existence at the 50 or so schools that will try to maintain their big time football teams.
What is also interesting is that unionizng at Northwestern could leave Northwestern as a prepetual door mat for the rest of the Big 10 schools who will be able to pay more and make better deals with their football players.
Also, reducing college football to 50 schools will cause several schools that currently win into big time losers that will lose their fan base.
And last, which school will be the first to drop sports: a member of Conference USA, a member of the Mountain West conference, or a member of the Sunbelt Conference. I suspect that it will be a Conference USA member as as UTEP.
@superdestroyer: hey, now! I didn’t say I supported it! I think it’s just as dumb as you do. But so long as conditions are the way they are, then the football players are de-facto employees and therefore entitled to unionize.
I mean, the NCAA could always change the rules to remove the “para-professional sport” aspect of it and make it so that the athletes are not just poorly paid employees of the school …
… yeah, like that’ll happen.
Doug, from your tone, I assume your position is college athletes are not employees. Personally, I find that absurd. Of course (at Division 1) the athletes are employees in a huge business that shares only the name of a University and has nothing to do with the primary purpose of a school. The idea that these employees are students with a hobby in athletics is just… well, words fail me. To hold such a belief in the face of such overwhelming evidence seems to be willful naiveté
@superdestroyer: Yep. Exactly. If people want to have a minor league sports team then they should have a minor league sports team and the employees should be allowed to unionize just like the majors. And we should sever the absurd relationship with Universities. It is corrupt, it is unhealthy and it promotes all the wrong values to the rest of the student body.
Northwestern football players are, generally speaking, aware they’re not going to the pros. Their objectives are to graduate without getting a serious injury and go on to get an MBA or law degree.
@Dave Schuler:
Considering that the SAT scores of the football team are well below the rest of the student body. Given that amount of time they have to spend on football, their inability to participate in internships during the school year or during August, and the high level of performance of the rest of the student body, I doubt if many of them have the grades and resume to get into a tier I law school or MBA program. Most athletes when they fellow up years later are either working in sports or in sales.
@Dave Schuler: You too? I gotta admit, I’ve never been a fan of college sports, except for my university’s then non-Division 1 teams, so I have that prejudice. But even accounting for that I can only equate the idea that Division 1 football and basketball teams are comprised of student athletes is on par with saying that Professional Wrestling is real. In both cases there may be business and marketing reasons to say it is so but I assumed that any rational observer could see that it is just so much BS.
As for the occasional student who comes out of such programs with an actual education, well, that speaks to the students, not to the obvious intent of the programs. There are also students who are able to obtain an education while caring for a sick parent, or working 60 hours a week or dealing with a debilitating illness. We celebrate their triumphs over those difficulties, but don’t use their examples as proof that everyone could do the same in their shoes.
if they could just “re-think” title 9 and it’s disastrous effects on college sports altogether- maybe these kids could get a little something in the end? sure, a college education is worth a lot of money- but we have more than enough “sports” majors to get us by for a while.
@bill:
Wtf does this word diarrhea mean?
@Dave Schuler: That’s a good idea, Dave. If these kids dare fight back and demand a tiny amount of the billions the NCAA is getting for their labor, the federal government should punish them through the tax codes. That will teach them that the product of all labor belongs to the owners at an early age, and maybe then they’ll vote Republican. Or “Libertarian.”
And by the way, what is it with “conservatives” hatred of unions? Why is it OK for corporate executives or sports team owners to do anything they can think of to improve their financial outcome, but the idea of low level employees banding together just gets the Repubs panties in a knot?
As an outsider it really seems like its all about repulsion of social inferiors putting on airs and trying to talk back to their betters. But I’m certain that self-described conservatives don’t see themselves in that way at all. So help me out here: why the visceral reaction to unions? Why does the idea of a bunch of McDonald’s workers trying to get health benefits and a couple bucks more take home pay get you so angry while a hedge fund banker successfully buying off congress-critters so as to keep their leverage interest deduction elicits no more than a “Yeah, well maybe thats a little unfair but you know, it’s complicated finance stuff and … HEY, SQUIRELL!”
@superdestroyer:
Am I OK with giving up entertainment so that workers can be fairly paid?
Yes, of course.
@superdestroyer:
Why, it’s almost like they’re not actually real students, but employees hired to work as football players with specific job requirements….
They’re in the service of the university for the economic benefit for the university, under a contract, and the university has the power and right to direct and control them in the material aspects of how the work is performed.
Sounds like an employee to me.
Yeah, so?
That’s not something you can leave aside. That’s a key fact.
Or they’re full-time athletes who happen to go to school in their off-hours.
That’s part of the problem.
Again, so what? I was never going to be a waiter after college, but that didn’t mean the restaurant I worked for part-time when in school didn’t need to pay me.
The problem here is that the NCAA and the universities want to treat college football as a business: they want to fill stadiums with fans paying for high-priced tickets, they want to broadcast the games on TV and sell ad time for millions of dollars, they want to bring in additional millions in revenue with licensing and merchandising and video game deals, etc. etc.
They want to be in business, that is, except in one key way: they don’t actually want to pay their employees. They don’t even want to admit they have employees but prefer to think of them as volunteers.
I mean, that’s the capitalist dream, isn’t it? All of the revenue with none of the labor costs.
@superdestroyer:
You do realize, don’t you, that it’s not possible to be taxed for more than the value of income you earn?
So who pays the union dues?
Unionizing football will essentially kill most college sports programs and student athletes get a benefit that non student athletes without scholarships don’t get-their education paid for without having to go deeply into debt to pay for it.
Also, most colleges make no money from their sports programs. Several smaller schools have dropped football entirely. My daughter’s University ended it’s a football program a few years ago. They do have a Div I hockey team.
Also, currently is any grant or scholarship pays for anything above tuition, fees and books that is viewed as income and taxable (I have a daughter on a full tuition academic/merit scholarship with an additional 6,000 in scholarship from the department of engineering-this 6,000 is taxable).
Also, my daughter has to meet certain requirements to keep her scholarship-she has to maintain a 3.0 or higher average and she is required to do 100 hours of community service per year.
@Just Me:
So let’s say that your daughter’s university was selling her academic papers for millions of dollars and her teacher was pocketing that money… you’d be perfectly fine with this because she’s getting a scholarship?
Well that would get the teacher fired.
The payment is a scholarship-the student athlete is getting an education at no cost. Something most students don’t get. The student athlete knows what they are getting into when they choose to accept the scholarship.
@Just Me:
No, it’s not without cost — the cost is the athlete’s labor. No playing football, no scholarship. It’s not, therefore, free, but rather contingent upon work performed.
@Console:
Graduate students always give up their intellectual property to the university where they are students. The same goes for post-docs. The graduate students get money for being a research assistant or a teaching assistant. However, they are not covered by full workman’s comp http://sciencecareers.sciencemag.org/career_magazine/previous_issues/articles/2014_03_12/caredit.a1400065
College is a bad deal for many students other than the athletes.
@Rafer Janders:
If you look at what the football players are proposing, not only do they want full tuition, fees, books, room and board, but also spending money and transportation for the holidays. They also want to be able to do endorsements, get paid for personal appearances, and be able to sell autographs/selfies. For the star players at Notre Dame, USC, or Duke could easily hit that level.
Could you image the starting quarterback at Notre Dame be able to pay quarterly estimated income taxes and to keep track of all of state and local tax implications based upon their locaiton while working as a football player.
@Rafer Janders:
The NCAA, as an organization, does not make any money from football. Virtually all of the income that the NCAA makes is from March Madness. However, there are about 40 schools in Division I football (old term) that do make money from football.
Are people really so eager to pay the football players at Alabama and Ohio State and they are willing to give up March Madness and reduce the number of schools with Athletic Departments to approximately 60. With only 60 schools playing college sports there will much less money to pass around to the few athletes who are left.
@superdestroyer:
So….capitalism, basically. The free market system. Entrepreneurialism.
My god, the bastards! Somebody stop them!
@Rafer Janders:
But the tuition paying students do not have dedicated tutors, do not get to register for classes first, are not treated with kid gloves by instructors. and do not have a huge support mechanism in the athletic department.
@superdestroyer: “Could you image the starting quarterback at Notre Dame be able to pay quarterly estimated income taxes and to keep track of all of state and local tax implications based upon their locaiton while working as a football player.”
No, I would imagine he would do what everyone else in that situation does and hire an accountant.
I mean, I know that what you want to say is that colleges shouldn’t pay football players because black males are too stupid to know how to handle money. Why not go ahead and make that point and see what happens?
Here’s the Awful 146-Word “Essay” That Earned an A- for a UNC Jock
“But the point is that anybody who thinks that most big-time college athletes are at school first and foremost to be educated is fooling themselves. They’re there to work and earn money and prestige for the school.”
@steve s:
The basketball players at UNC are there to play basketball, get shown on television all of the time and win. How does paying the players at 64 schools while eliminating the teams at 300 schools change any of that.
@steve s:
I would really trust a 20 y/o college student to go out and interview accountants given how many professional athletes, musicians, and actors cannot seem to get it straight. Remember, the football players are not employees and the university has to treat them like athletes. I wonder how many of them will fail to enroll given that the athletic department will probably have to stop doing anything extra for them.
@superdestroyer: I don’t and am currently not surrendering my new IP to the University I attend. In fact most of the schools have deals where they are willing to provide you with their legal departments for Patent Fillings and other such IP stuff and take usually between 1-10%. No one gives up everything, because unlike athletes top schools try and take care of grad students.
@steve s:
Well, if we’re going to treat anecdotes as data, here’s the article Penn State right guard John Urschel published in Celestial Mechanics and Dynamical Astronomy:
Instabilities in the Sun-Jupiter-Asteroid Three Body Problem
Maybe we shouldn’t treat one paper, good or bad, as a stand in for the entirety of college athletics.
@superdestroyer:
I’d imagine they’d handle it about the same as any 20 year-old minor league AAA baseball player. Better, in fact, since unlike many baseball players the football players would actually be college grads.
@Neil Hudelson: i’ll neil it down for you, just off the press!
@Just Me:
Most students provide no surplus value to their university via their attendance. The opposite in fact, which is why they have to PAY money to go in the first place.
Let’s put your daughter in another analogous situation. Let’s say she wants to go to another school, but if she takes a scholarship then she has to wait a full year before she can start and loses a year off that scholarship. That’s the equivalent of what would happen if a football player tried to transfer. And your daughter doesn’t risk her life and health to do homework.
And I don’t get why you’re so hung up on the scholarship angle. If Johnny Manziel decided to give up his scholarship, he’d still be stuck with the same rules. If he transferred then he’d have to wait a year to play. If he sold autographed memorabilia for a living then he’d be ineligible to play ncaa football. And this is a guy that is literally worth 10’s of millions of dollars to his university. The idea that I’m supposed to turn a blind eye to the money he generates is nonsensical on it’s face.
The Texas Tech QB Mayfield is in this very situation. He’s a walk-on starting QB. But since he splits time, he’d rather go to another school and have the job full-time. If he did that then he would lose a year of eligibility and have to sit out a year.
These are things that fundamentally would be unjust in any other situation. But people have this weird elitist attitude towards athletics.
And dear god Superdestroyer, you do realize that there are star athletes in sports under 20 that make tons of money. No one was fretting over Lebron James having to fill out taxes.
Console the solution IMO then is to get rid of athletic scholarships and have the athletes pay the full freight and then pay them for their athletic time.
Pretty sure college sports won’t survive it but at least the athletes will get paid.
I personally have no objections to a student athlete making money through endorsements etc but I do object to the whining about not getting paid when they are making about 30 to 60 thousand a year through their scholarships. When my oldest daughter (she does not have a full tuition scholarship and has to take out some loans) graduates she will have loans to pay back.
If the student athlete has made the most of their educational opportunity when thy graduate they won’t have any loans.
I just don’t have much empathy on that front when the vast majority of students are paying and struggling to pay for their educations.
@Just Me:
College sports will survive in the form of college students playing sports. “College sports” in the form of multi-million dollar TV deals and everyone else getting rich of the labor of student athletes won’t survive, nor should it.
@Rafer Janders:
You are forgetting about the recruitment process. A player at Ohio State or Alabama can make money off of being a player on the football team that a player at Northwestern or Vanderbilt cannot. If you start letting the players make money off of the alumni and hangers-on, college football quickly collapses to a sport with about 50 teams. Why do you want to reduce the number of players who get a scholarship so that schools with the worst graduation rates can pay their players.
@Console:
James makes millions and had to hire an attorney to negotiate a contract. ESPN has a documentary about the number of professional athletes who mishandled their money. The college kids will be much worse. People complain about the corruption caused by the NCAA rules. Image adding personal appearance money for the top players at the top 50 schools. The corruption will get much worse.
If you want to pay the players, then college football will be reduced to about 60 schools and March Madness will cease to exist. Why is paying the players at Ohio State and Alabama so important that people want every school in the MAC, Conference USA, Sunbelt, American Athletic Conference, and Mountain West Conferece to give up football and their sports programs.
@Rafer Janders:
Football teams are very expensive. Without the TV money, most schools will give it up. And without football and athletic scholarships creating a Title IX compliance issue, schools will quickly drop their women’s sports teams.
Do you really want to turn college sports into what Rugby is today? Why not keep the money and have revenue sharing so that Alabama and Ohio State does not have millions to pay a coach with and to spend of extravagant facilities?
@superdestroyer:
Yes. Because rugby is actually played by real students at the universities, rather than by often academically unqualified mercenaries. I’d rather all students spend their afternoon playing rugby for their own health and fun, with no millionaire coaches and no TV deals and no booster clubs, than a few thousand “students” play football for the amusement of millions of fat, lazy old men on their couches.
@superdestroyer:
So instead of a free market, with individual workers being paid for their labor and allowed to make their own decisions about their money, you’d prefer a managed, top-down economy with an unaccountable bureaucracy telling everyone just how much they can get paid and what they can do with it.
Man, once college sports is the issue every conservative’s inner socialist really comes out, doesn’t it?