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Editor’s note: On August 17, 2015, the National Labor Relations Board (NLRB) declined to assert jurisdiction in a case brought forward by the scholarship football players at Northwestern University, who sought the right to unionize as employees of the university. This column was published in April 2014 after a regional NLRB ruling initially recognized the football players as employees of the university and entitled to unionize.
If a recent NLRB regional ruling that Northwestern scholarship football players are employees of the university and entitled to form a labor union is not overturned, college athletics as we know it today will be changed beyond recognition.
I write this not because I am anti-union or even because unions will destroy college athletics; they wouldn’t. While the ruling only applies to athletes at private universities, it could unleash a succession of court opinions that would seriously damage college athletic programs.
If scholarship football players are employees because they are performing services for Northwestern and being paid by scholarship, as the NLRB region ruled, then what about non-scholarship football players? Wouldn’t they be unpaid employees in violation of minimum wage laws and be entitled to premium pay for overtime? Wouldn’t Northwestern have to install time clocks in locker rooms to create accurate records of time worked? Would an attorney representing the players file a class action suit claiming back pay for all non-scholarship athletes?
Wouldn’t federal labor laws trump NCAA regulations? If so, would universities be allowed to pay all football players as much as the schools wanted to pay? Wouldn’t the NCAA’s efforts to prevent this be the illegal actions of a cartel?
If every disciplinary action taken by a coach were subject to a grievance process whenever any immature teenage athlete decided to file one, would coaches be able to maintain control over their programs? Would effective coaching become very difficult or even impossible? Could a coach drop a unionized player from a team?
One of the goals of the College Athletes Players Association (CAPA), which is unionizing the Northwestern players, is to “[allow] players to receive compensation for commercial sponsorships.” Imagine what so-called boosters, typically alumni who are willing to provide money to help their favorite teams win, could do with this opportunity. Would a prospective all-American high school senior be offered $300,000 to sponsor Joe’s hotdog stand, $400,000 to sponsor Sam’s clothing store and $500,000 to sponsor Bill’s bicycle shop, and choose which school to attend primarily on the basis of sponsorship money?
If a football player is an employee, surely every athlete participating in inter-scholastic athletics is an employee. Most sports except football and men’s basketball lose money now and would lose a lot more if players had to be paid. In many cases, these money-losing sports are subsidized by the profits from football and sometimes basketball. Those profits would be reduced by the (perhaps astronomical) wages paid to football and basketball players. How many sports that lose money today would be simply dropped by schools no longer able to afford them if they have to pay players?
Employees not represented by a union are covered by laws which outlaw discrimination in wages and promotions. If a black or Hispanic quarterback was demoted and a white athlete became the starting quarterback, could a non-union school be sued for racial discrimination? Could a low-wage non-union athlete sue for wage discrimination? Could these suits be class actions?
Perhaps some schools would see opportunity in all of this. Perhaps they would gladly pay even million-dollar salaries to enough football or basketball players to generate so many victories that alumni contributions would soar and more than cover the added expense. Would some star college basketball players actually take a pay cut when they move to the NFL or NBA, where all teams are covered by union contracts that provide maximum salaries for entry-level players?
Could the system evolve into two, three, or four conferences, all of whose members are big-money schools and a large number of others with only small-money schools? Would each NFL and NBA team establish a relationship with one school that would create a “farm system” affiliation?
Would NCAA rules on eligibility relating to grades or attendance remain enforceable? Why should employee players be required to go to classes at all? Would any minimum GPA requirement for employment be illegal discrimination against “students” who had limited grade school or high school educational opportunities?
Would any of this actually happen? If it did happen, couldn’t Congress pass new laws to prevent it? If Congress did, however, wouldn’t the equal protection clause of the Constitution make these laws unconstitutional?
Although no one can predict what the courts will do, it is easy to predict what some attorneys will do. They will bring suits seeking to produce every one of the potential changes to intercollegiate athletics mentioned in this article. While not all of these changes can occur because some are mutually exclusive, it wouldn’t take many to drastically change inter-collegiate athletics.
If the Northwestern decision is not overturned, it seems inevitable that most inter-collegiate athletic programs in most sports will be disbanded and that a few schools with very wealthy alumni will dominate what little will remain of college sports.
Mr. Binder is the author of “Science Lessons: What the Business of Biotech Taught Me About Management,” and a Trustee of the American Enterprise Institute.
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