THE BLOG
04/22/2014 02:09 pm ET Updated Jun 22, 2014

National Labor Relations Board vs. NCAA

It is not surprising that a regional office of the National Labor Relations Board has given preliminary approval for a union to represent Northwestern University football players. The reasoning is that players are more revenue-generating employees than they are student-athletes. That thinking also is not surprising, though less compelling at elite Northwestern, where graduation rates are high and recruiting "one-and-done" athletes is discouraged. One could argue that, in the major conferences, athletes have a more direct impact on revenue than most faculty or staff do. Also as expected, NCAA opposition to the ruling was immediate and vigorous. The entire edifice of college athletics hangs on the idea of student-athletes, with the emphasis heavy on the former.

Most of the comment on this case has centered on whether or not Northwestern players deserve higher compensation -- and whether collective bargaining is the best course of redress. What seems to be missing, however, is recognition that a pattern of unions representing individual teams bargaining with individual universities would do great damage to the current NCAA model. Suppose that collective bargaining at Northwestern results in a significantly higher compensation than, say, at the University of Illinois. That would be a huge competitive advantage. At first blush, the NLRB ruling should have Wildcat fans doing cartwheels! Northwestern will be allowed, through federally-mandated collective bargaining, to provide substantially higher compensation than their competitors. If Northwestern did that now unilaterally, its football program would be subject to the highest NCAA sanction, the "death penalty." I'm no attorney, but I believe that federal regulations trump the private rules of the NCAA. Northwestern alumni can start making annual reservations for Pasadena.

But, of course, such a competitive advantage is unsustainable. The Illini or Buckeyes would not watch passively as their top recruits sign at Northwestern, or other privates like Vanderbilt or Baylor (the NLRB jurisdiction applies only to private universities). As a result, the fragile voluntary agreements that limit athletes' compensation to tuition, room and board, and incidental expenses would be out the window and competition by pay for top athletes would be unleashed. Wealthier and better-known football programs right now would like to be able to exploit their advantage over financially weaker institutions, and several athletic directors have indicated they would like to do more for their student-athletes. In a competition between the University of Nebraska and University of South Dakota, who is likely to win?

Many contend that such competition would destroy college athletics and they may be right. But there is no question that the structure of college athletics as we know it today would be much different. As such, the NLRB-Northwestern ruling is just one of several serious legal challenges to NCAA rules that set compensation ceilings and restrict player mobility.

I have to wonder about the implications for Division III, where Texas Lutheran is a member. Our rules set compensation for athletes at zero -- no athletic scholarships. What would the unionization of Division I programs mean for us? Surely, athletics generates much less revenue and students devote less time to practice and competition. But an All-American athlete still is economically valuable even in Division III, and there is still a sizable time commitment to be a member of a D-III team. What about Division II? If we are headed to paying athletes, where will the line be drawn?

Club sports, anyone?