By David Hejmanowski
March 27, 2014
“Players spend 40 to 50 hours per week on [their] duties during the three or four month football season. Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies.”
—Peter Sung Ohr, Regional Director, NLRB
“We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid.”
There were plenty of major news stories midweek. The situation in Ukraine remains unstable and volatile. The search for the wreckage of Malaysian Air Flight 370 continues. Recovery efforts continue from Washington state’s landslide. There was a major fire in Boston that claimed the lives of two firefighters.
Even in the world of sports, there were major stories. Baseball season is about to begin. The NCAA tournament continues. The NFL draft is approaching. In the midst of all of these stories it is not surprising that a major story crossing the boundaries of sports and the law failed to garner the attention that its magnitude deserves. But the decision of the Chicago office of the National Labor Relations Board may just change the face of college sports- or college football at least- to a degree that most fans cannot even imagine.
That’s because the Regional Director of Region 13 of the NLRB concluded on Wednesday that the scholarship members of the Northwestern University football team — a Big Ten program — are not merely students, but are employees of the university who may form a union and collectively bargain with the university for salaries and other benefits.
First, a note about what this does NOT mean. This decision does not apply to all college football teams. It applies only to Northwestern, at least for now. It does not apply to all athletes, but only to football players who have scholarships (again, for now). It is not final. The University has said that it will appeal the decision and years of legal actions could follow.
Second, some notes about what the decision is. The decision is a ruling by one of the districts of the National Labor Relations Board that scholarship members of the Northwestern football team are employees of the university and therefore entitled to decide if they want to unionize. The NLRB regional director arrived at the decision based on a number of factors, including the fact that the students are paid by the university (scholarships), that the football players are subject to rules that do not apply to other students, that the football players’ time commitment is significant and, in fact, greater than a normal work week and the amount of money that the university makes off the football program. In that final discussion, the NLRB decision notes that between 2003 and 2012 the football program earned Northwestern $235 million and had expenses of $159 million.
One of the major issues for the NLRB to decide was what the “bargaining unit” was. Because the bargaining unit has been determined to include only scholarship football players, the chances of the unit reaching the 30 percent threshold to begin negotiating is high. Had the bargaining unit included all athletes in all sports, that would have been a much harder number to reach.
If the decision is ultimately upheld, it will open many, many more questions than it has answered. Will major colleges and universities drop football in order to avoid paying student athletes? Will paying college football players to stay in compliance with the NLRB ruling mean that colleges are no longer in compliance with Title IX’s gender equity rules? Since negotiations with state employees are governed by state law, how will states modify their laws to protect their state institutions of higher learning?
In fact, this last question is likely the one that has the most impact on the future of college football and college athletics in general at Ohio State. The prospect of unionized Buckeye football players could add significant fuel to current debates about right-to-work laws and whether state laws should allow government employees to unionize, since athletes at state universities could potentially be found to be state employees if the NLRB ruling is upheld and eventually applied nationwide.
The discussion about whether the current structure of college sports- particularly football and men’s basketball- fairly treats the athletes who play them has just gotten much, much more interesting. And the discussion is only beginning. There will be multiple appeals and, no doubt, many more moves to unionize at other private universities. The face of big-time college athletics may never be the same again.
David Hejmanowski is a Magistrate and Court Administrator at the Delaware County Probate/Juvenile Court and a former Assistant Prosecuting Attorney.