Are College Athletes Employees?

Northwestern wide receiver Christian Jones (14) makes a catch against Illinois  during the first half of an NCAA college foot
Northwestern wide receiver Christian Jones (14) makes a catch against Illinois during the first half of an NCAA college football game on Saturday, Nov. 30, 2013, in Champaign, Ill. (AP Photo/Jeff Haynes)

Members of the Wildcat football team at Northwestern University have filed a representation petition with the Regional Office of the National Labor Relations Board in Chicago, seeking a Labor Board-conducted election to determine whether a majority of the players want to be represented by a union for purposes of collective bargaining. This week, a Labor Board hearing officer is receiving the evidence the Labor Board will need to determine whether it should proceed with the case. While this is a unique situation regarding college athletes, a representation proceeding is a common practice, occurring more than a thousand times a year.

The news media have focused on the Northwestern petition because of its potential implications for college sports. Some commentators portray the case as collegiate Armageddon. Our nation's college campuses would be polluted by millionaire college athletes. The football team could even strike! The results of this, we are told, would be disastrous for universities and for the sporting public.

Many folks can understand the raw deal college athletes receive when the NCAA cartel caps their compensation to tuition, books, room, board and a small stipend. College athletics produce millions in revenue for their colleges, but the stars of the game cannot receive compensation commensurate with their contribution to the entertainment they provide. It is a sweet deal for colleges.

The Northwestern case, however, has nothing to do with the fairness of NCAA regulations. In the interests of its constituent member colleges, the NCAA has designed and administered a system that minimizes the costs to the institutions. Walter Byers, the late executive director of the NCAA, even created a term for these sports entertainers. They are referred to as "student-athletes." The NCAA vigilantly protects the brand of college athletics to distinguish it from professional sports. Whether that is correct or fair is an issue for another day. The Northwestern petitioners just want the right to bargain collectively with Northwestern University.

The sporting public must understand two things about the pending Northwestern petition: First, the Labor Board will have to determine whether it has jurisdiction to proceed and that will happen only if it decides that the football players are "employees" covered by the National Labor Relations Act; second, if the Labor Board conducts an election and a majority of the football players vote to be represented by a union, the University would be required to bargain in good faith with the players over wages, hours, and other terms and conditions of employment such as medical coverage. Let's unpack these two issues.

The primary issue before the Labor Board is whether the men who play football wearing the purple and white jerseys of Northwestern University work for the institution. Other full-time college students who, for example, work at the University bookstore, in the libraries or in food services certainly are employees, and they could, if they wished, form a union. The Labor Board's decision will not turn on what the University (or the NCAA) calls these young men. Byers' label is clever marketing. It may not reflect the reality of what athletes actually do at their schools.

The evidence presented to the Hearing Officer will demonstrate whether the University retains the right to control how football players carry out their functions at the University. At most institutions, football and basketball players perform directed sports activities for their colleges on an almost full-time basis. They also must go to classes and maintain their good academic standing. Does the fact that they have to be students mean they cannot also be "employees?" That is not the case for any other students on campus who also work for the institution.

The second issue -- what would happen if the football players actually unionize -- is not directly relevant to whether they are "employees." If a majority of players decide to unionize, the University will likely contest their status by refusing to bargain with the union. The case would then proceed through the Labor Board to the Circuit Court of Appeals where the issue of the players' status will ultimately be determined. After that process is completed - and it will likely take years for that to happen -- and assuming the Circuit Court determines that football players are employees, the University would then be required to bargain in good faith with the union. The University is under no obligation to make a concession or to reach an agreement.

We are a long way from millionaire college athletes. The only millionaires on most campuses now are the football and basketball coaches who have been the beneficiaries of the millions made by the sports they coach. The Northwestern petition starts in motion a process that is long overdue. It is likely that none of the men on the current football team, however, will be around Evanston to receive the benefits of this case, assuming it is ultimately successful. It will be the generations of athletes that follow who will reap the rewards. They should remember who to thank for their good fortune.