College athletes can unionize, federal agency says

By Associated Press
March 26, 2014 - The Washington Post

CHICAGO — In a stunning ruling that could revolutionize a college sports industry worth billions of dollars and have dramatic repercussion at schools coast to coast, a federal agency said Wednesday that football players at Northwestern University can create the nation’s first union of college athletes.

The decision by a regional director of the National Labor Relations Board answered the question at the heart of the debate over the unionization bid: Do football players who receive full scholarships to the Big Ten school qualify as employees under federal law and therefore can legally unionize?

Peter Sung Ohr, the NLRB regional director, said in a 24-page decision that the players “fall squarely” within the broad definition of employee.

Pro-union activists cheered as they learned of the ruling.

“It’s like preparing so long for a big game and then when you win — it is pure joy,” said former UCLA linebacker Ramogi Huma, the designated president of Northwestern’s would-be football players’ union.

An employee is regarded by law as someone who, among other things, receives compensation for a service and is under the strict, direct control of managers. In the case of the Northwestern players, coaches are the managers and scholarships are a form of compensation, Ohr concluded.

The Evanston, Ill., university argued that college athletes, as students, do not fit in the same category as factory workers, truck drivers and other unionized workers. The school announced plans to appeal to labor authorities in Washington, D.C.

Supporters of the union bid argued that the university ultimately treats football as more important than academics for scholarship players. Ohr sided with the players.

“The record makes clear that the employer’s scholarship players are identified and recruited in the first instance because of their football prowess and not because of their academic achievement in high school,” Ohr wrote. He also noted that among the evidence presented by Northwestern, “no examples were provided of scholarship players being permitted to miss entire practices and/or games to attend their studies.”

The ruling described how the life of a football player at Northwestern is far more regimented than that of a typical student, down to requirements about what they can eat and whether they can live off campus or purchase a car. At times, players put 50 or 60 hours a week into football, Ohr added.

Alan Cubbage, Northwestern’s vice president for university relations, said in a statement that while the school respects “the NLRB process and the regional director’s opinion, we disagree with it.”

Huma said scholarship players would vote within 30 days on whether to formally authorize the College Athletes Players Association, or CAPA, to represent them.

The specific goals of CAPA include guaranteeing coverage of sports-related medical expenses for current and former players, reducing head injuries and potentially letting players pursue commercial sponsorships.

Critics have argued that giving college athletes employee status and allowing them to unionize could hurt college sports in numerous ways, including raising the prospect of strikes by disgruntled players or lockouts by athletic departments.

For now, the push is to unionize athletes at private schools, such as Northwestern, because the federal labor agency does not have jurisdiction over public universities. But Huma said Wednesday’s decision is the “first domino to fall” and that teams at schools — both public and private — could eventually follow the Wildcats’ lead.

Outgoing Wildcats quarterback Kain Colter took a leading role in establishing CAPA. The United Steelworkers union has been footing the legal bills.

Colter, who has entered the NFL draft, said nearly all of the 85 scholarship players on the Wildcats roster backed the union bid, though only he expressed his support publicly.

He said the No. 1 reason to unionize was to ensure injured players have their medical needs met.

“With the sacrifices we make athletically, medically and with our bodies, we need to be taken care of,” Colter told ESPN.

The NCAA has been under increasing scrutiny over its amateurism rules and is fighting a class-action federal lawsuit by former players seeking a cut of the billions of dollars earned from live broadcasts, memorabilia sales and video games. Other lawsuits allege the NCAA failed to protect players from debilitating head injuries.

NCAA President Mark Emmert has pushed for a $2,000-per-player stipend to help athletes defray some expenses. Critics say that is not nearly enough, considering players help bring in millions of dollars to their schools and conferences.

In a written statement, the NCAA said it disagreed with the notion that student-athletes are employees.

“We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid,” the NCAA said.

All of the big NCAA conferences, including the SEC, also disagreed with the decision.

“Notwithstanding today’s decision, the SEC does not believe that full time students participating in intercollegiate athletics are employees of the universities they attend,” the SEC said in a written statement.

The developments are coming to a head at a time when major college programs are awash in cash generated by new television deals that include separate networks for the big conferences. The NCAA tournament generates an average of $771 million a year in television rights itself, much of which is distributed back to member schools by the NCAA.

Attorneys for CAPA argued that college football is, for all practical purposes, a commercial enterprise that relies on players’ labor to generate billions of dollars in profits. The NLRB ruling noted that from 2003 to 2013 the Northwestern program generated $235 million in revenue — profits the university says went to subsidize other sports.

During the NLRB’s five days of hearings in February, Wildcats coach Pat Fitzgerald took the stand for union opponents, and his testimony sometimes was at odds with Colter’s.

Colter told the hearing that players’ performance on the field was more important to Northwestern than their in-class performance, saying, “You fulfill the football requirement and, if you can, you fit in academics.” Asked why Northwestern gave him a scholarship of $75,000 a year, he responded: “To play football. To perform an athletic service.”

But Fitzgerald said he tells players academics come first, saying, “We want them to be the best they can be ... to be a champion in life.”

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Follow Michael Tarm at https://twitter.com/mtarm .

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