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Labor board rules Northwestern football players are entitled to unionize as school employees

March 26, 2014 at 6:41 PM EDT
The National Labor Relations Board has made a landmark ruling in favor of football players at Northwestern University who claim they are school employees. Currently the decision only applies to private schools, but it is expected to reverberate more widely. Jeffrey Brown examines the case with Michael McCann of the University of New Hampshire Law School.
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JUDY WOODRUFF: An important decision today on a huge and hotly debated question in the world of college sports. Should student athletes be paid? A regional director of the National Labor Relations Board ruled that football players at Northwestern University are considered employees of the school and are therefore entitled to organize a union. Those players are the first to seek union representation.

Jeff is back to look at the details of this case and the potential impact.

JEFFREY BROWN: For now, the ruling applies only to private colleges and universities, but it is the first of its kind. And the decision is expected to reverberate more broadly.

The ruling said the university’s primary relationship with the football players was an economic one.

Michael McCann is director of the University of New Hampshire’s Sports and Entertainment Law Institute, and legal analyst for “Sports Illustrated” magazine. He joins us now.

The key thing here, Mr. McCann, is the finding that these athletes qualify as employees, not just students? Explain that and why it’s so important.

MICHAEL MCCANN, University of New Hampshire Law School: Sure.

It’s important because, by being declared employees, the student athletes will be able to then unionize, and they will be able to enter into collective bargaining with Northwestern University and try to demand salary benefits, but more than that, also, better health care benefits, disability payments, workers’ comp, the typical benefits that go along with the status of employment, which they currently do not get as student athletes.

JEFFREY BROWN: And give us a little bit of background on this particular case, the students at Northwestern, how they came to bring this case, and what they were saying they wanted.

MICHAEL MCCANN: Sure.

So the students are led by quarterback, Kain Colter, who several months ago decided to pursue the ability of he and others collectively bargaining with Northwestern. But to get to that step, they had to petition the National Labor Relations Board, which has the legal authority to decide whether or not employees at private employers, which in this case would include Northwestern, have the legal right to unionize under the National Labor Relations Act.

There were then hearings where he testified and said a number of things, one of which is that he works a lot, in his words, that he works between 40 and 50 hours per week, whereas NCAA rules limit the amount of time that student athletes can devote to sports to either 20 hours during the season or eight hours during the off-season.

So what he said was contradicted in terms of what the NCAA’s rules were. And it appears that the regional director sided can Kain Colter on that. And the thesis of the players’ argument is really that they’re working, that they’re just not getting paid.

Now, there are counterarguments to that, and the case is by no means over because there will be an appeal to the National Labor Relations Board in D.C., but, as a first step, this is a big victory.

JEFFREY BROWN: Well, there are counterarguments for a long time, and of course most of it — much of it from the NCAA itself.

They came out with a statement right now. They said: “We strongly disagree with the notion that student athletes are employees.”  They continue: “We frequently hear from student athletes that they participate for the love of their sport, not to be paid.”

What is — they have resisted this a long time. What is the brunt of their argument?

MICHAEL MCCANN: Well, the brunt of the argument is what you noted, Jeffrey, that many student athletes are not commercialized in the sense that they are generating lots of revenue for their school, that when we look at athletes that are generating the revenue, they tend to play in two sports, one of which is men’s basketball. The other is college football.

But there are many athletes in college that are not like that, if you will, that are more traditional college athletes, that they’re primarily students who also play a sport. And there is something of a disconnect, where Kain Colter is representing the group that’s really commercialized, that’s on television, that’s generating a lot of revenue for Northwestern in terms of ticket sales, in terms of television deals, video game deals and the like.

And as a result, the NCAA is focused more on those that are not as commercialized. But I think it’s important to stress that there is a potential gender equity issue here. If only male athletes are paid, I’m sure that there will be female athletes who will bring a separate lawsuit under Title IX, which is a federal law that commands gender equity in higher education, including college sports.

JEFFREY BROWN: Well, that’s what I was wondering. When you look at this, and it is one ruling, given that, but what — where does — what kind of broader applications might flow from this?

MICHAEL MCCANN: Well, if it holds, it would have broader applications in that student athletes at other private institutions could then rely on this decision as precedent. They could say, well, look, if Northwestern players can unionize, so can we.

And we’re not just talking about football players. It could be basketball players. It could be tennis players, you name it. However, student athletes at public universities can’t rely on this decision. The National Labor Relations Act only governs private employees, not public.

As a result, students at University of Alabama, other state schools, Ohio State, they’re going to have to rely on their state laws to try to unionize. And some states, in fact, 24 states are considered right-to-work states, states that limit or outright deny the ability of employees at public universities to unionize.

So it could end being that student athletes at private universities can be members of a union, but those at some public schools can’t, including many schools that are in the South, some big-time programs.

JEFFREY BROWN: All right, and we will watch for that. And, as you said, this case itself will be appealed.

Michael McCann of the University of New Hampshire, thanks so much.

MICHAEL MCCANN: Thank you very much.