NLRB Rightly Grants College Athletes Union Membership

On Wednesday, the National Labor Relations Board (NLRB) region 13 director, Peter Sung Ohr, granted the Northwestern University football players the right to join the College Athletes Players Association (CAPA) union. The petition by the Northwestern football players was filed by their quarterback, Kain Colter, and had the support of the United Steelworkers. Ohr’s decision establishes a precedent for athletes at private colleges and universities to form or join unions. At the very least, it will allow players to join together to voice their concerns with issues that affect their well-being such as injury risk and time commitment. As of January, CAPA’s stated goals for the petition were limited to seeking more medical protections for players and guaranteeing scholarships in the event of injury. This decision, however, could also fuel growing criticism of the thriving business of college athletics and encourage the idea that the players should be paid on top of their scholarships.

Northwestern University and the NCAA have criticized the decision, arguing that college athletes are amateur athletes and students, not employees. Yet, the facts of the current system indicate that by any definition, these athletes are woefully underpaid employees. Broadly speaking, an employee is one who is compensated for one’s work and is under the control of an employer. The players at the Northwestern football team were compensated in the form of grant-in-aid of about $61,000 each academic year to cover the costs of tuition, fees, room, board, and books required for their education. As for control, Ohr touched on several aspects of the Northwestern football program’s system that are typical of many college athletic programs, in which players are under the supervision of their coaches and must follow a special set of rules. Northwestern sets strict limits on players’ ability to pursue outside employment, post on social media, or profit from their “athletic ability or reputation.” Additionally, players are required to commit 40 to 60 hours of time for conditioning, meetings, and practice for the team. “Not only is this more hours than many undisputed full-time employees work at their jobs,” Ohr noted, “it is also many more hours than the players spend on their studies.”

Lastly, Ohr stated that players were “recruited in the first instance because of their football prowess and not because of their academic achievement in high school,” indicating that their scholarships are linked to their performance on the field. Under an economic realities test, the athletes are employed by their athletic department. Ohr noted that the students’ services were extremely valuable, generating revenues of $235 million for the Northwestern football program between 2003 and 2012. By all of these standards, the NLRB regional director is correct in deciding that the Northwestern football players are employees for purposes of the National Labor Relations Act.

The decision will increase the ability of Northwestern players to give their input on safety conditions in their sport, which is increasingly important given recent studies on how playing football can increase the likelihood of developing neurodegenerative diseases. As a result of the 2011 negotiations between the NFL and the National Football League Players Association, some steps were taken to improve NFL player safety such as a reduction in full-contact practices and an option to stay on the players’ medical plan for life. Similarly, college athletes ought to have the same right to express their concerns with practices that may endanger their hopes of professional sports careers and, more importantly, their long-term health.

College athletics, particularly those with television deals, are extremely lucrative for the National College Athletic Association (NCAA), schools, and athletic directors and coaches. In fact, much of the money is directed to athletic directors and coaches. Athletic directors at most college institutions receive between $200,000 and $1.4 million in annual pay. College football and men’s basketball head coaches make as much as $5.3 million (Nick Saban, University of Alabama football) and $7.3 million (Mike Krzyzewski, Duke University basketball). Ironically, Armen Keteyian and Jeff Benedict, authors of The System: The Glory and Scandal of Big-Time College Football, found that only 22 of the top 120 football programs break even or make a profit. Seemingly, this is due to the fact that the programs feel like they need to “keep up with the Joneses,” as Washington State president Elson Floyd said, by paying out large salaries to top coaches and building new stadiums just to sustain the programs.

Yet, these programs are successful due to the performance of the college athletes, many of whom were recruited at the early ages of 16 to 19 and are, because of their youth, inexperienced and financially dependent on athletic scholarships. Due to strict NCAA rules that prevent any sort of pay making its way to athletes, many athletes survive on the modest meal stipends provided by their teams. A study conducted by Drexel University on college football scholarship receipients found that even those who receive full scholarships did not receive sufficient aid to cover the entire costs of attending college, which left a majority of them below the poverty level. With the NCAA’s revenue of almost $900 million in 2012, it is not unreasonable to assume it can afford to provide athletes with stipends, especially when the NCAA president Mark Emmert made $1.7 million in annual compensation in 2011. Keep in mind, college athletes have very little chance to enter professional leagues and earn the high salaries that come with those careers: only 1.7 percent of college football players make it to the National Football League (NFL) while only 1.2 percent of men and 0.9 percent of women basketball players make it from college to the National Basketball Association (NBA) and Women’s National Basketball Association (WNBA), respectively.

Northwestern University has already announced it will appeal and the NCAA has also harshly criticized the decision. Keteyian responded to NCAA president Mark Emmert’s assertion that players shouldn’t be paid if they expect to have the opportunity to become a professional athlete by stating, “So I think Mark Emmert is in la-la land if he thinks that this is going to continue with the stakes ever increasing, with the national football playoff on the horizon, and there isn’t going to be some sort of job action someday by these athletes in order to get what I believe they deserve, which is a small piece of the pie.” It looks like the NLRB regional director’s decision could mark the beginning of that very effort.