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 firstname.lastname@example.org 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.
Can this work?
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.]
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.