Are Scholarship Athletes Employees? NLRB Ruling Prompts House Hearing

Earlier this year, the National Labor Relations Board (NLRB) ruled in the Northwestern University case finding that grant-in-aid scholarship football players at private colleges are employees under the National Labor Relation Act (NLRA), thus earning the right to bargain collectively.

That case started when the College Athletes Players Association filed a petition on behalf of football players at Northwestern seeking the right to unionize in the hopes of addressing a number of specific issues. In April, Northwestern football players voted on whether or not to unionize; the vote tally has been impounded pending a review by the full NLRB.

As a result of the NLRB ruling, House Education and the Workforce Committee held a hearing titled, “Big Labor on College Campuses: Examining the Consequences of Unionizing Student Athletes.” There are many sides to this complex issue, and the diversity of positions was reflected in the testimony from the witnesses, several of whom are NAICU members.

• Baylor University President and Chancellor Ken Starr, outlined several unintended consequences of declaring students as employees, including: 1) the ruling means that whether or not they form a union, student athletes will be considered employees; 2) antitrust implications related to paying wages versus maintaining competitive intercollegiate sports; and 3) student wages being subject to federal income tax withholding. Additionally, Judge Starr laid out several Title IX implications, including the possibility of colleges limiting intercollegiate opportunities for men and women. Baylor’s primary goal with student athletes, Judge Starr testified, is to provide them with an empowering educational experience through curricular and co-curricular activities that prepares them for their lives after a collegiate playing career.
• Bradford Livingston, a labor and employment attorney, cautioned that, while he supports the right of employees to freely choose whether or not to form or assist a labor union and to bargain collectively, and realizes that equities in college athletics and its economic structures will remain, the NLRA, however, is not an appropriate vehicle to address these issues. Treating athletes as employees redefines them from being student athletes to professional athletes who are also students.
• Andy Schwarz, an economist who specializes in antitrust economics provided the Committee with a set of interesting facts supporting the players’ right to unionize. Scholarship football players at Northwestern devote 40-60 hours of football-related activities per week during a five month season. They devote 15 to 25 hours a week the rest of the year. He asserted that the current collegiate system places a cap on compensation, thus denying the 95% of student athletes who will not play their sport professionally, access to the only potential earning years of their sports careers.
• Bernard Muir, athletic director at Stanford University pointed out that student athletes are not a separate cohort of students, having a separate experience from the rest of the student body. They take the same classes, participate in the same laboratories, live the same housing, and have the same exam schedules. Stanford has a Student Athlete Advisory Committee and is already addressing issues that were raised by the Northwestern players, such as medical costs of injuries, protecting scholarship support for students who are medically disqualified from playing, and promoting player safety.
• Patrick Eilers, a standout on the 1988 University of Notre Dame championship football team, who later played for three teams in the National Football League, expressed concern about the unintended consequences of student athletes being deemed employees and what unionization could bring to athletics. On the other hand, he said the pursuit of unionization is a practical means to an end. The conversation over unionization is a vehicle to implement improvements to the collegiate athletic system. He favors mandated four-year scholarships, health and insurance benefits, as well as stipends. He acknowledged that some athletic programs already operate in the red; however there is plenty of money being generated by big-time athletics via television and video game contracts, merchandise sales, etc. that budgetary impediments are an unacceptable excuse for inaction.

Representative George Miller (D-CA), ranking member of the Committee spoke of student athletes going to bed hungry due to NCAA rules limiting their ability to earn money, the mega profits being made by the NCAA, and the 40-hour weeks committed to athletics by players during the season. While Rep. Miller acknowledged that the schools represented at the hearing were doing more than most to support student athletes, he faults the NCAA and college presidents for only reacting to concerns once there is a crisis, citing concussions in sports as an example.

Representative John Kline (R-MN), chair of the committee, said only a few student athletes will make it to the professional level and for the majority participating in college athletics is a ticket to an education they could not otherwise access without a college scholarship. He said schools owe a duty to all student athletes to take care of medical expenses that arise from a sports-related injury. Schools should also provide medical and academic support. Having said this, he believes that applying NLRA rules to colleges and universities is not the proper solution to address these issues.

It is clear that student athletes have raised a number of important concerns that need to be addressed. What is less clear is whether there is much support for the NLRB as the best arbiter of a resolution or whether policy makers would rather see the matter addressed by college presidents and the NCAA.

In an expected next step, the NLRB has invited interested parties to submit briefs to address issues raised in the case. Briefs must be submitted by on or before June 26, 2014.

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