On The Union
We've reached a crossroads. Northwestern has had just about their entire football program sign on to an attempt to get themselves recognized as a union by the National Labor Relations Board. This is a crossroads for the NCAA for obvious reasons.
It is also one for this here blog because it is explicitly a no-politics zone. Whenever the word "union" comes up your bitter uncle who watches Sean Hannity on a loop waddles in from [email protected] to talk about how unions are the doom of America and gets in an argument with your aunt with a dozen cats who sounds like that one lady on NPR. This argument is why the hopefully-soon-to-be-fired dude in charge of NCAA PR framed his response like so:
This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education.
The unions! They're destroying education.
I don't care about any of that; I only want to look at an interesting tactic to force schools to bargain with their athletes.
So.
Can this work?
![19967c3u6e0rkpng[1]](https://mgoblog.com/sites/mgoblog.com/files/images/And-Oh-Right-The-Other-Large-Story_AA4A/19967c3u6e0rkpng1.png "19967c3u6e0rkpng[1]")
Former UNC center John Henson
The NCAA says student-athletes are not employees, because student-athletes are student-athletes, who are not employees. This came about in the 1950s when the widow of a player who had died tried to get workmen's comp. The Colorado Supreme Court eventually found that Fort Lewis College was "not in the football business," which was probably accurate in that time and place.
More recently, a paralyzed TCU player had a long-running court battle that ended in 2000 with the NCAA winning on what seems like a hell of a technicality:
The appeals court finally rejected Waldrep’s claim in June of 2000, ruling that he was not an employee because he had not paid taxes on financial aid that he could have kept even if he quit football.
Along with a weaving series of decisions by the NLRB that erratically but generally side with universities when students who happen to also be workers ask for bargaining rights, this is what the NCAA will hang its hat on.
On the other side, a 2006 paper by a couple of Michigan State law professors (one of whom is a Michigan law alum) entitled
THE MYTH OF THE STUDENT-ATHLETE: THE COLLEGE ATHLETE AS EMPLOYEE
The article is a lot more fun than it sounds.
Why, a half century after adopting this term, should the NCAA
unceasingly intone to millions of viewers that these young men and
women are “student-athletes”? The NCAA’s purpose in this message is
to shore up a crumbling façade, a myth in America, that these young
athletes in NCAA-member sports programs are properly characterized
only as “student-athletes.” This characterization—that athletes at
NCAA-member schools are student-athletes—is essential to the NCAA
because it obscures the legal reality that some of these athletes, in fact,
are also employees.
About halfway through the authors start using the term "employee-athletes" in a delightful fashion. And I'm pretty sure that this paper is the underpinning of the case Northwestern will take to the board, because it lays out its argument specifically for D-I football and basketball players. The new College Athletics Players Association is currently restricting itself to the same players:
Huma told Farrey that only NCAA Division I FBS football players and men’s basketball players will be eligible to join CAPA — not because non-revenue sports athletes don’t deserve a voice and workplace protections, but because revenue sports athletes are in the best position to make a legal case that they should be treated as employees.
The upshot of their argument is that the most recent edict set down by the NLRB declares that students working in some capacity for the university are not actually employees as long as their work is primarily educational (ie, research assistants getting credit for their work) and if their relationship with the university is "not an economic one."
Scholarship athletes are being compensated for activities that have nothing to do with their academic goals and if they're at a number of D-I basketball and football schools they are raking in millions of dollars for their university. Therefore, they are employees*. It's hard to envision a court claiming with a straight face that Michigan is "not in the football business" these days. That they are using their football business money in bizarre ways is not the NLRB's problem.
The weakest part of the argument here comes from the fact that employee-athletes are all given the same amount of compensation. The decision this paper is basing their argument off cited the uniformity of compensation of GAs at Brown, and the fact that some Brown students got the same compensation without having to do work-like activities. The paper convincingly argues that this fourth test is nonsensical in multiple ways, but that is still a sticking point upon which the whole enterprise might founder.
I'm no law-talking guy, but I'd say there's a decent chance Northwestern gets certified.
*[As long as you accept the premise that athletes submit to a high level of control of their activities in exchange for compensation, which is entirely obvious and will be fought against tooth and nail by the NCAA.]
Then what?
Well, then Northwestern and Northwestern only would have a player union. They would have the legal right to collectively bargain with Northwestern for impermissible benefits that would give the NCAA cause to annihilate Northwestern.
States across the country with laws on the books that are friendlier to student-employee rights would see local CAPA chapters mushroom. As anyone who's dealt with a GEO strike knows, Michigan is one of these.
At this point, the entire system has to either collapse or be forcibly restructured. What the NCAA looks like in the aftermath is completely unpredictable, at least for schools in major conferences. The one thing that is clear: the firmament will be shaken as employee/student/athletes go from people watching the NCAA to half of the decision-making process.
Go team.
January 29th, 2014 at 2:50 PM ^
January 29th, 2014 at 3:04 PM ^
for an answer, unfortunately, but I'll point out that the athletes are in fact working to pay for their education (unless I'm mistaken and their scholarships aren't dependent on continued participation in their sport).
The argument, to me, is whether it's OK for colleges and the NCAA to agree on the limits on pay in this particular arena. I suspect that if there was a system in place that limited compensation in your field, you would not think it was particularly fair.
The question of whether people will follow non-amateur sports is a different one, but then big-time college sports are not really amateur at the moment, if you think carefully about it. Athletes are receiving a benefit with financial value in return for their participation in a revenue-generating activity.
January 29th, 2014 at 4:34 PM ^
I must have missed the part where Denard Robinson didn't play football and attend classes for 4 years. That must have been a stunt double he hired with all of his free money and scholarship windfall.
You can feel however you want, but you can't portray scholarship athletes as not "earning" their "free" education. They play football at UM, and as part of their compensation they have their academic tuition covered. That's about as a bargained-for exchange as you can get.
January 29th, 2014 at 6:29 PM ^
January 29th, 2014 at 2:50 PM ^
January 29th, 2014 at 2:52 PM ^
But, that was a different time and I'm pretty sure hockey players got paid in baked beans at the time
January 29th, 2014 at 2:57 PM ^
They need to make them pay for the education they are getting. I'm sorry you don't get a free ride and get paid. That isnt fair to the 98 % of college kids who don't play sports and have to pay their own way for decades after school.
January 29th, 2014 at 3:11 PM ^
January 29th, 2014 at 3:15 PM ^
January 29th, 2014 at 4:37 PM ^
Well, because those 98% of students aren't good enough at a sport to justify a University paying them to play for them. Sorry - be faster, stronger, quicker, etc. College sports isn't the free market by any stretch, but it is a market where excellence is rewarded. Just because a whole bunch of people at college are 5' 10", 165lb guys who are in average shape shouldn't be held against other people who are so exceptional people are willing to pay for them to attend the school.
January 29th, 2014 at 3:08 PM ^
NCAA marketing of branded merchandise numerically enhanced by its more memorable student-athletes this summer, the association didn't seem to have a problem with collecting money off the sweat and exposure of its so-called voluntary workforce on football fields across America.
And who cared that these guys work yearround on their game and far more than 40 hours a week in season on conditioning, rehab, game study and other prep work in addition to carrying a student workload.
And why is it if the voluntary football and basketball workforce at the University of North Carolina is being steered into no-show classes and credited with course work they never took, that you can still call them student-athletes?
Northwestern football players took the plunge in union organizing because the NCAA doesn't provide workplace protections or guaranteed scholarships with voluntary releases, and there is no other way to get this organization's attention about that unless you threaten their bottom line and that of their members
Unionizing, by the way, is about collective bargaining, not striking, picketing or threatening the livelihood of the organization they are controlled by. The fact is the NCAA regulates the behavior of student-athletes to prevent them from being viewed as employees, when the very schools that pay their way treat them as such.
January 29th, 2014 at 3:16 PM ^
IF these kids are not professionals, why are they being asked to do more. When I told my dad I was excited for next season's college playoff he made me think...his first response was I feel sorry for the kids. It used to take 11 games to win a national championship when my dad was playing football at Michigan, now that number has increased to 15. For the benefit of whom? The college kids and their education? Their health long term down the road?
A LOT of former players my dad played with in the early 70s have since passed or are dealing with extreme injuries related back to their football playing days. So increasing the amount required for these NON PROFESSIONAL athletes is for the benefit of WHOM?
My response to my dad was when I played and won a state championship in high school football, we played a 15 game season to win it all up in Canton. His response...how many athletes on a given high school team go on to play Division 1 football on the other side of the ball from you...3,4,5? In college, these players are all high school all stars and the battle is on a different scale. Just posting that for another perspective...
January 29th, 2014 at 3:34 PM ^
I despise the idea of playoffs and miss the old days of 11 game seasons.
This also gets to an often overlooked point in the discussion of "exploited" student athletes. Everyone quickly jumps to money and talking about financial compensation (despite the obvious problems this poses) when, maybe, we should really be talking about cutting back on the exploitation by having fewer games. Or maybe college games shouldn't be televised at all, especially by for-profit networks like ESPN. Maybe it should even be illegal for any media coverage of college sports (outside of the school's student run newspapers, radio, etc.)
If we want to get serious about easing the "exploitation" then we need to start looking at it differently. Cut out those doing the exploiting (yes that includes Mgoblog.com). Many of us bitch about it but, sadly, we are very much a part of the burden placed on these kids.
January 29th, 2014 at 4:26 PM ^
I guess it could be argued that athletes are, in fact, receiving more than before in the sense that their free ride saves them far more money than it used to. A scholarship wasn't worth that much when tuition was $500 a term, but now that it's $10K-$20K a term, that's another story.
January 29th, 2014 at 6:19 PM ^
...more than those upfront costs because a lot of regular students need to rely on loans to pay for school. Some of which they'll be paying back for the next 20 years.
The fact that an athlete can graduate debt free is potentially a huge career advantage. In a tight job marketplace, someone with loan payments might be forced to take a higher-paying job (but with lesser of long-term opportunity) than a debt free graduate. Many career fields often have very low wage (or even unpaid internships) as first step up the career ladder. A scholarship athlete gets the chance to take those opportunities whereas many of their peers will not.
January 29th, 2014 at 3:22 PM ^
If the NCAA powers that be would simply stop calling what they give out "scholarships". What's to stop them from just making it, say, a union-bargained salary-- let's say a percentage of Athletic department revenue for the 105 students (football plus basketball), with some form of tuition discount involved. That's, what-- 3 to 4 million per year for a $30,000- $40,000 per year salary? I think that this would be the most fair even though it would kill D-II and D-III football as we know it. It would also make certain schools -- Michigan, Ohio State, Alabama, USC, and many others perennial football powers. And Duke, don't forget Duke.
Of course, this might clean up the game in one way: if Athletic department employees were complicit in providing additional benefits, it seems like the IRS might become way more involved in those invesigations.
January 29th, 2014 at 3:56 PM ^
January 29th, 2014 at 3:40 PM ^
If student-athletes are considered employees wouldn't they then be entering into a contract with schools to be play football and/or basketball for four or five years in addition to academic activities? Would they be obligated to fulfill the terms of their contract as opposed to jumping early to the professional leagues.
This is definitely Pandora's Box and there could be a lot of unintended and unforeseeable consequences.
January 29th, 2014 at 3:45 PM ^
if current student-athletes are organizing and operating the unions as members then it has a chance. otherwise, if they bring in counsel and outside advisors, theyll function just as nearly every other union in countrys history, and thats eventually acting and making decisions that often conflict with union members best interest. might work, might not. education vs athletics vs compenstation vs amateurism vs etc can be argued and debated and disected infinitely. ncaa and current system has countless flaws, but any replacement system will likely have just as many, just in different facets with new conflicts/problems. utopias do not exist and big time college sports will never be run ideally for all. sometimes the bitter uncle is right - and only proven so if/when new proposed system proves just as imperfect as status quo
January 29th, 2014 at 3:50 PM ^
I like Diane Rehm, even with her spasmodic dysphonia riddled voice.
January 29th, 2014 at 4:09 PM ^
You know what the answer to this really is, don't you?
Revoke scholarships. Athlete-employees will simply annually get paid the former value of their scholarships, which, if they intend to attend the university, they have to pay the university for the right to attend and go to classes, play under the top coaches, and enjoy the privileges of the grand stage. It's work-study in a nutshell.
The only thing I'd focus on is the fact that scholarships typically are conditioned on meeting certain benchmarks while attending school. Therefore, moving away from a scholarship system to a strictly employer-employee based system would have to account for performance (or expected performance). The way I'd do it is by offering payment of employment contracts up-front, in 1-4 year deals, and/or customize them with opportunities for extension.
This way, if you're hunting for that true blue-chip guy, you can offer him a 4-year contract, paid up front; so that if he so chooses, he can cover all 4 years of school. He can also take the money and run; but that's the risk you take on such a kid, and it would end the whole pay-for-play debate.
Obviously, though, the kids would have to academically qualify under their contracts.
Easy.
January 29th, 2014 at 6:24 PM ^
Now that seems like a disaster waiting to happen.
How long before one of these kids takes that cash, leverages it up with a bad loan to buy a ferrari and then is crying poor because he can't pay tuition on time?
January 29th, 2014 at 6:44 PM ^
January 30th, 2014 at 9:54 AM ^
Yes. That's exactly what the coaches would tell him, assuming he couldn't pay his tuition.
For the first crop of kids, I absolutely expect there to be irresponsibility. Which is good, because there's no better teaching moments than those that come from the consequences of poor choices. But also, don't forget that a "professional" can also take endorsement contracts, receive money from boosters, have agents.
I'm just endorsing a system where the school simply pays a contract sum commensurate with the cost of tuition across the board (up front, in any denomination of 1-4 years' tuition so as to attract the bigger fish) for the kids that used to be scholarship athletes.
A Jameis Winston type would have money coming in elsewhere; I'm sure.
January 29th, 2014 at 3:56 PM ^
January 29th, 2014 at 4:23 PM ^
Man I wish things were like they used to be: competitive football played by guys who were proud to represent their school and grateful for the opportunity.
January 29th, 2014 at 4:42 PM ^
Were there unicorns and Ents walking around as well? Was there a lion who wore regal clothing? Because apparently you lived in a hybrid Narnia/LotR world.
January 29th, 2014 at 4:52 PM ^
Nope. I walked around Schembechler Hall the football building with 120 other guys who loved the university and were proud to wear the winged helmet. Those that were dissatisfied transfered. There was such a thing as playing for school pride. Sorry you never got to experience it.
January 29th, 2014 at 5:23 PM ^
January 29th, 2014 at 5:45 PM ^
January 29th, 2014 at 6:04 PM ^
January 29th, 2014 at 7:20 PM ^
dumbest comment of 2014 so far. Good God...
January 29th, 2014 at 9:13 PM ^
Congrats on apparently feeling a great sense of accomplishment playing for your school (I presume you are talking about UM). I was never good enough to play any sports at UM, so I obviously missed the comraderie that flowed through all athletes at the school back whenever you played. Also, I'm happy you have been able to talk to every current athlete at UM to make sure that those who would contemplate receiving some assurances that their scholarships would be honored and they'd receive medical care for injuries suffered during their playing days are only performing because they expect to be compensated and don't care about school pride.
This is what drives me crazy about this argument. On one side is a group asking for additional protections that really aren't crazy, mostly basic expectations of care and ongoing relationships that aren't subject to the whims of a guy looking at his depth chart. On the other side are logical arguments about feasibility of enforcement, appropriation of funds, etc. And then there's this third rail of people who wax poetic about athletes being happy they get a "free education" and that anything additional becomes some ungodly bhydra of socialism, public-funds robbery, entitlement, and bratty athletes.
It's like those individuals who bitch about Richard Sherman but love Nik Stauskas blowing kisses. Unless society took a break from being filled with humans some years ago, athletes and the schools that they play for have always had some tension. UM had that tension with the Fab 5, and before that (likely) with guys under Frieder. I'm sure Bo rubbed a couple people the wrong way, and probably put pressure on kids to perform who probably shouldn't have. I get that is all in service of some greater good; "the team, the team, the team." But you can have pride in your school and still want to be treated in a way that protects some of your interests, and those two elements can remain in harmony.
But yes, please continue to denigrate any alternative opinion or viewpoint by trotting out the tired "you didn't play, you wouldn't understand" argument.
January 29th, 2014 at 4:54 PM ^
January 29th, 2014 at 5:13 PM ^
January 29th, 2014 at 5:39 PM ^
January 29th, 2014 at 6:09 PM ^
Let's nip a lot of arguments in the bud. If your pro argument takes the form of "the NCAA makes a lot of money off of these players and so should pay them, " then form a professional league by hiring away the money-making college players and make all that money yourself. If the NCAA is just sucking the teat (or even the "teet") of the players, you can easily beat (or even "beet") them at their game.
If your argument is that only the universities can make that system work, then you are arguing that it isn't the players after all, but the school names and traditions, that are worth so much money. In that case, the players don't deserve the big bucks.
Not that current compensation is necessarily fair, but that applies to all athletes whether they are making the school money or not.
January 29th, 2014 at 7:49 PM ^
Also, because I sometimes use a phone to post a reply while on the train and get autocorrect end or suffer the occasional fat finger must mean you are smarter than me, so all my arguments must be invalid, so thanks for pointing that out.
January 29th, 2014 at 8:05 PM ^
Ah, the ol' collusion argument. Well, go ahead and provide evidence that the NCAA has suppressed professional leagues employing 18-22-year-olds. Otherwise, this is just more crackpot conspiracy theory stuff.
As far as the idea that somehow, players in 'revenue-generating sports" (which is pretty much all of them at Michigan, i believe) are somehow more entitled to payment than those whose sports don't charge for admission, feel free to make that point, if you can.
On the "teat/teet" thing, that was just to set up the "beat/beet" pun. It came off more mocking than intended, and I am the last one who should be mocking typos, so I apologize.
January 29th, 2014 at 9:07 PM ^
So under that logic, WNBA players should get equivalent contracts as NBA? It's called capitalism, and I'm not sure it needs an argument in this country.
As for the collusion argument, you do realize that the NFL as we know it was formed when the AFL threatened the free recruiting collegiate pipeline model to such a degree that the only solution was for the leagues to combine to preserve and strengthen that model.
But really, all you need to do is ask the hypothetical. If the NCAA were to cease to require member schools to not pay athletes, would the "fair market value" remain at just a scholarship. The answer is clear. QED collusion.
January 29th, 2014 at 10:30 PM ^
The ironic thing about charging collusion and insisting on "fair market value" in the context of this discussion is that unions exist largely to ensure their members receive above fair market value for their employment. The question you ask about collusion can easily be asked the other way around: let's say GM were to open a new plant and announce that it would be non-union and they were offering $10 an hour less than what their union workers made and potential applicants could take it or leave it. Would they be able to fill the jobs? Easily.
"Fair market value" does not come into play here, never will, and never should. Otherwise a small handful of athletes would be paid exorbitant amounts, some would be paid a little, and most would have to pay the school for the privilege of being on the team. Capitalism really has little place in college athletics. The more capitalistic it gets, the less everyone likes it.
January 29th, 2014 at 5:46 PM ^
This will probably take a number of years to play out and ultimately the current Northwestern players won't be the ones to benefit. The playoff system next year will accelerate this. When the playoff expands to include more teams (8 or 16 teams, as it probably will) it may eclipse the Super Bowl in total revenue as the single biggest sports event in the country.
January 29th, 2014 at 6:16 PM ^
Isn’t the liability the biggest concern? If the players are employees the schools could be on the hook for the long term effects playing football has on the players. We have learned a lot about these effects in recent years but there is a lot we don’t know. If you are a trustee of the university you have a fiduciary responsibility to evaluate and protect the university from risk. The NFL is going to pay out $750 million to try and settle this issue (it’s far from clear this amount will settle it) with its players. The individuals responsible for the protecting the interest of the university have to look at this with concern. If the student athletes become employees the risk rises. When will the long term risk associated with running a football team outweigh the current benefits?
January 29th, 2014 at 6:24 PM ^
That's a good point. I'd like to see schools be responsible even if the players are not employees, but that legislation isn't ever going to pass. The proper assignment of responsibilty for player welfare is really the only argument in favor of professionalization that I can see.
January 29th, 2014 at 7:40 PM ^
January 29th, 2014 at 8:08 PM ^
Wow. that came out of left field. Do you really believe that allowing athletes to play and receive a school scholarship while they are enrolled is socialism? Is a scholarship to a music student socialism?
I see this case as many things, but not at all a battle between capitalism and socialism. feel free to educate me.
January 29th, 2014 at 9:20 PM ^
If a scholarship for a football player was a fair compensation, nobody would be trying to stop players from getting more because they would know that the market wouldn't bear it. Pretend for a second that this isn't our beloved college football we're talking about and this isn't an argument.
January 29th, 2014 at 6:19 PM ^
the day that they start paying college athletes is the day that i stop watching, or attending college athletic compeitions. i know it won't be much at first. they will pay them cost of living wages. then will come the endorsements, and the first million dollar contracts. then the university will have to sell the naming rights to the stadium in order to keep up with player's salaries. i would very much not like to see the day when the stadium is refered to by some corporate abomination.
January 29th, 2014 at 7:59 PM ^
January 29th, 2014 at 8:12 PM ^
The NCAA doesn't have anything to do with apparel contracts insofar as I know, and only negotiates for TV rights to the NCAA basketball tournament. Conferences and schools do the rest of the negotiating.
Make the NCAA "illegal" and the universities would just form the NUAA; they need a central rule-making body to ensure fairness in inter-collegiate athletic competitions, and there is no way you will convince a legislature to make it illegal to have fairness rules for intercollegiate athletic competitions.
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