Despite a recent ruling by a regional director of the National Labor Relations Board (NLRB) that football players at Northwestern University have a right to form a union, there are many complex issues and unintended consequences that can emerge from the decision.
The specific concerns – many of which relate to employment law – were voiced last week by witnesses testifying before the House Education and the Workforce Committee.
Peter Sung Ohr, a regional director of the NLRB, ruled football players at Northwestern are “employees” of the school for the purpose of collective bargaining. The full NLRB will review the decision. Players' ballots on whether to form a union have been impounded awaiting a decision from the full NLRB.
Among those testifying at the hearing was Bradford L. Livingston, who specializes in labor and employment law at Seyfarth Shaw.
“I believe the National Labor Relations Act is not an appropriate vehicle to address student-athletes’ concerns or disputes with their colleges and universities, athletic conferences, or the NCAA,” Livingston said in prepared remarks. “The legal and practical results of deeming these student-athletes to be employees within the meaning of the Act would be profound and unworkable.”
He rejects the idea that students who participate in intercollegiate athletics should be viewed as “employees.” The NLRB regional director used a common law definition of “employee.” That includes that “the athletes perform services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment,” Livingston explained. But Livingston points out student-athletes are not “hired” by a college and are not providing “services” to the school.
Also, letting players form a bargaining unit would likely mean that athletes receiving scholarships would be able to “negotiate over playing time, whether non-bargaining unit (walk-on) players have the right to perform bargaining unit work by playing in games, and other ‘working conditions’ typically within a coach’s discretion,” Livingston said.
In addition, a union could negotiate over the total number of scholarships available, the duration of any scholarships, and the duration of an employee-athlete’s eligibility, according to Livingston.
The union could negotiate, as well, over “academic standards, ranging from minimum grade point averages, to class attendance requirements, the number and form of examinations or papers in any class, grievance procedures to challenge a poor grade from a professor, and even potentially graduation requirements,” Livingston said.
Another witness was Ken Starr, president and CEO of Baylor University, who has been president of the Southern University Conference and a former U.S. Solicitor General.
He predicts that giving student-athletes employee status, will lead to “legal and regulatory issues.”
“Our primary goal with students-athletes is to provide them with an empowering educational experience (through curricular and co-curricular activities) to prepare them for their lives after a collegiate playing career,” Starr said in his prepared testimony. “Simply put, the Regional Director’s decision will result in uncertainty and instability across the higher education landscape.”
Among the likely issues are those that relate to disabilities, workers compensation, unemployment compensation, statutory leave entitlements, wrongful discharge, and non-compete agreements, he said.
In addition, Starr argues that if antitrust “principles and collective bargaining eliminate pro-competitive limitations on payments and benefits, there may literally be no ‘competitive’ intercollegiate sports.”
Another concern is that student-athletes and the universities would have to consider the “wages” subject to withholding for federal income taxes, Social Security, and Medicare. In addition, given Title IX, which prohibits gender discrimination in college athletics, a disparity “would predictably result in widespread litigation and, at a minimum, adverse reaction from various advocacy groups. Other unintended consequences are possible, especially by limiting intercollegiate opportunities for men and women in an effort to maintain overall compliance.” Another issue is that the Occupational Health and Safety Administration could assert jurisdiction if student athletes were allowed to unionize, Starr said.
There are many issues that the Northwestern players would like the union, if it is formed, to address.
In his statement on the issue, John Kline (R-Minn.,) the committee’s chairman, said, “We share the concerns of players that progress is too slow, but forming a union is not the answer; treating student athletes as something they are not is not the answer.”
“The nostalgic days where student-athletes really were ‘students’ first…are pretty much over for high-level athletic programs,” added Rep. George Miller (D-Calif.), the committee’s ranking Democratic member, InsideCounsel reported.