At the end of January, a group of Northwestern University football players filed a petition with the National Labor Relations Board seeking an election to certify the College Athletes Players Association as their bargaining representative. The filing of that petition began the legal process that will first determine whether the Northwestern players are employees under Section 2 of the National Labor Relations Act. A hearing is scheduled for February 7 at the NLRB's Region 7 office in Chicago to determine that issue.
The NCAA issued a statement that "Student-athletes are not employees within any definition of the National Labor Relations Act" and that it is "confident the National Labor Relations Board will find in our favor, as there is no right to organize student-athletes." Other legal experts who represent universities have stated that the exclusion of students from the right to form a union was settled in 2004 when the NLRB held that graduate students at Brown University were not "employees" under the NLRA and therefore could not unionize under the law. Those who discount the players' chances suggest that their attempt to organize a union will require a reversal of precedent and is unlikely.
However, a closer look at both the words Congress used in the NLRA and in the Board's Brown University decision gives the players at least a coin-flip's chance at success. Section 2(3) of the NLRA commands that employee "shall include any employee" save for a number of specific and limited exceptions none of which would embrace college football players. Further, the purposes of the NLRA tend to support the players. In passing the statute, Congress attempted to correct the "inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association... " While Congress was primarily concerned with the impact that imbalance had on interstate commerce, no one can seriously argue that organized college sports -- with the economic impact of national television contracts and tournaments -- are outside of interstate commerce. And, college sports are not exactly interstate commerce bench players either. One study noted that the combined revenue of just the top fifteen college football programs exceeded $1 billion in 2010.
Not only does the language and purpose of the Act support the player's bid to seek the protections of unionization under the NLRA, but the NLRB's 2004 Brown decision does as well. While it denied the right of graduate student teaching assistants to organize, a careful reading of the decision lends much support to the players' recent play for protection. Answering a strong dissent, the Brown majority clarified that its decision was grounded on four pillars: (1) that the TAs were students at the university, (2) that the TAs' receipt of stipends and tuition remission was contingent on their being students, (3) that their "principal time commitment" was focused on obtaining a degree, and (4) that serving as a TA was "part and parcel of the core elements" of their Ph.D programs.
So framed, the Board could maintain its Brown decision and still grant the Northwestern players employee status. While the Northwestern players are certainly "students" of the university and their ability to play and to receive scholarship support is contingent on their student status, the remaining two Brown pillars are simply missing. Accordingly to the 2010 Growth, Opportunities, Aspirations, and Learning of Students in College study, players in Division I college football programs spent 41.6 hours per week on athletics and only 38.2 hours per week on academics. By those numbers, the Northwestern players' "principal time commitment" was focused on playing football -- not obtaining a college degree. Further, unlike the Brown TAs whose teaching and research were required components of their degree programs, playing football is not a required course. If the NLRB agrees, players will have the right to organize and collectively bargain without fear of reprisal. If the NLRB does not, college athletics will continue to be the only starting player in interstate commerce that can operate under the privilege of neither paying nor bargaining with the very people who make the industry possible.
The simple truth is that no one knows whether these players will be granted the protection of the NLRA to organize and collective-bargain for their mutual aid or protection. We will get a preliminary answer from the Board soon and will we likely have to wait many years to get a final answer from a court. But those who write off the Northwestern players' petition as a Hail-Mary pass do so at their own peril. Besides, every once in a while a player catches a last-second pass heaved to the end zone.
Mr. Mastrosimone is an Associate Professor of Law at Washburn University School of Law in Topeka, Kansas. He teaches labor law, employment law, and legal research and writing in Washburn's 11th ranked legal research and writing program. Prior to teaching, he was a Senior Legal Counsel in the NLRB's Office of Representation Appeals and to former NLRB Chairman Robert Battista.