Posted January 28, 2014

Northwestern football players seek to unionize; what does the development mean?

NCAA, Northwestern Wildcats
Kain Colter

Kain Colter and Wildcats players have filed to be recognized as members of a union. (Jonathan Daniel/Getty Images)

Football players at Northwestern have requested representation from a labor union, Tom Farrey of ESPN’s Outside the Lines reports.

Ramogi Huma, president of the National College Players Association, filed a petition on behalf of Northwestern players that would essentially recognize college athletes as employees, according to the report.

The movement began when Wildcats quarterback Kain Colter reached out to Huma, a former UCLA linebacker, last year. Huma met with Northwestern players — an undisclosed number of whom had signed union cards filed with the National Labor Relations Board — last weekend.

Northwestern athletic director Jim Phillips said in a statement that the Wildcat players are doing exactly what the university teaches.

We love and are proud of our students. Northwestern teaches them to be leaders and independent thinkers who will make a positive impact on their communities, the nation and the world. Today’s action demonstrates that they are doing so.

The NCAA, meanwhile, was less welcoming of the request for union representation. NCAA Chief Legal Officer Donald Remy said the Northwestern players’ efforts to unionize overshadow the academic focus of a student-athlete’s college career.

This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize.

Many student athletes are provided scholarships and many other benefits for their participation. There is no employment relationship between the NCAA, its affiliated institutions or student-athletes.

Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act. We are confident the National Labor Relations Board will find in our favor, as there is no right to organize student-athletes.

So, what should we expect from this development? Campus Union caught up with SI.com legal analyst Michael McCann to break down Northwestern’s attempt at unionization.

SI: Now that Northwestern players have filed a petition for union representation, what happens next?

Michael McCann: The next step is the NLRB will require that at least 26 of the 85 scholarship players on the Northwestern football team have joined this petition. In order to unionize, there must be at least 30 percent of the group that’s trying to unionize. It sounds like that’s not going to be an issue.

The harder step after that is for the NLRB to assess whether or not student-athletes are, in fact, eligible to unionize. That’s a complicated issue. It doesn’t have an easy answer. The reality is the NLRB will look at what’s called the National Labor Relations Act. It’s a federal law that basically determines whether a group can unionize.

There will be legal challenges, as well, and it’s worth emphasizing that this is not an overnight process. It could take months if not years to play out. But the key issues will be whether or not a student-athlete, especially a football player at a Division I school, is more like an employee than a student. Some of the aspects that will be considered will be the burdens and obligations of being a student-athlete on a D-I football team: Hours spent in team meetings, travel, revenue that’s being generated, commercial obligations, etc. The entities that would be reviewing this would look at whether student-athletes are in an academic position or a commercial position.

SI: The union rep said player compensation is not an immediate goal of these efforts, but it could be down the road. Do you see the issue gradually moving in that direction?

MM: Yeah, I do. I think the most likely form of compensation would be efforts by the union to seek group licensing contracts for broadcasting rights. That’s so the student-athletes that appear in games on live TV are compensated through a television contract. Now ESPN and others would say, “Wait a second, we already paid for the rights, so we’re not paying some additional fee.” They would object. The players are going to say, “No, you didn’t contract with us, and we’re a union.” Whether they would boycott games or not is a separate issue. I think compensation would be an effort to seek group licensing contracts. That’s the most likely form of compensation that a union would seek.

SI: Does this movement by Northwestern’s players affect the ongoing lawsuit between Ed O’Bannon and the NCAA?

MM: The O’Bannon lawsuit will be resolved in one form or another before this gets resolved. Of course, the O’Bannon lawsuit could end up in the Supreme Court, so I say that with a little bit of caution. The O’Bannon case is headed for a trial in June; if there’s no settlement there will be at least a trial and then a decision probably by the fall. So we’ll get a resolution on that likely this year. We probably won’t have a resolution on this union attempt this year. I just see this getting litigated for a long time.

The potential impact, however, is O’Bannon can now say, in essence, “Look, student-athletes who are not members of this lawsuit have sought to unionize.” So this sort of strengthens his case. Athletes who are not named plaintiffs in his case are now taking on a separate endeavor that is fundamentally about the same thing: Whether or not college athletes should be compensated for their performance.

One difference is that O’Bannon is seeking money for student-athletes’ image and likenesses. This unionization is really a total attempt to become employees, to negotiate labor rights. So it’s different, but they’re seeking the same overall goal.

SI: One issue that always comes up in these situations is the effect of Title IX. How might Title IX impact a player’s efforts to unionize?

MM: Let’s say football players and men’s basketball players unionize, and they seek compensation for their labor. Title IX, as we know, demands gender equity in college sports. We could see Title IX lawsuits brought against unionization because of the impact it would have on women’s sports. The counterargument is that women’s athletes could unionize, as well, and that’s true. But the reality is male athletes would likely command a lot more money as a union than female athletes would. I think Title IX is a potential issue because the unionized male athletes are going to command money that would seem to tip the balance of gender equity in favor of men.

SI: Northwestern is a private university. Would the process be any different if players at a public university sought to unionize?

MM: The National Labor Relations Act, which the Northwestern players are using, does not govern employees at public universities. Student-athletes at public universities who want to join Northwestern in the union effort would have to instead use state labor laws to unionize. This will be a problem for some. States’ laws vary considerably on whether, and how easily, public employees can unionize. Twenty-four of the 50 states are considered “right-to-work” states in that their laws limit opportunities for employees of public institutions, including those employed by state universities, to unionize. Right-to-work states are typically in the south and include Alabama, Arkansas, Georgia, Mississippi, Tennessee, Texas and Virginia. Nebraska, Utah and Iowa are also right-to-work states.

This legal twist means that if college athletes want to be in a union, they need to attend schools where unions not only exist but are possible under the law. In theory, this dynamic could disadvantage public universities in right-to-work states while recruiting high school athletes: If those athletes want to be in a college sports union, they may not be able to do so at public universities in right-to-work states.

SI: Should we expect more players and programs to attempt to unionize now that the barrier has been broken?

MM: I think others will join. I think we’ll see other schools do this. They’re smart, the folks that are doing this. I’m speculating, but I think there will be a trickle effect. I suspect every couple of weeks, we’ll see a new school join. That’ll revisit this topic over and over again, and it’ll give the impression that there is growing support for it.

130 comments
tmel41
tmel41

But, the players need to remember that as employees of the University, they can be fired whenever the University feels they are not performing.

02maizenblue
02maizenblue

So who ends up getting to be the sports' New York Yankees?  Based on alumni and fan base populations, I'm guessing Ohio State?

Steve851
Steve851

I'm confident this played a part in NU's very disappointing season.  Fitzgerald needs to think about cleaning house and getting more true student athletes instead of this bunch

bubbalooey
bubbalooey

Overall it may prove to be a good thing for Universities, half may completely drop sports programs all together and concentrate on education.  The others will turn into a mini NFL, so the players can not only sue the NFL for their health issues but the schools also.  It would cut down on all those un-necessary bowl games, just keep the major ones.  The only downside would be of course ticket prices at college games going for over $100 each, $20 parking, $10 hot dogs....... could be, rather WILL  be more expensive......

GoPSULions
GoPSULions

Many use the argument that players should be paid because the program is making big $$ off of them.  Lets look at any employer from McD's on up.  Very few get revenue sharing.  Its a straight compensation for work, as it is now for them.  Based upon NCAA time restrictions, for an average college with about $40K/year for tuition, books, room/board, ... they are essentially compensated for about $75 hour tax free.

charlielax
charlielax

Good news. The scholarship becomes taxable income and player pays accordingly. Another tax revenue stream.

geoAZ
geoAZ

Too smart by half...instead of giving these geniuses a 'scholarship", pay them the equivalent, then charge them for their uniforms, training, insurance, have them negotiate an individual contract with ESPN to "show" their product and watch the unemployment and food stamp rolls grow !

bartle.dale
bartle.dale

This could get tricky, by law, a scholarship is a contract. A person receives compensation (education) in return for their services (sports). The legal (federal) definition of an employee is "a  person who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has a right to control the details of the work performed." While an "employee" is never legally defined as receiving "cash, or monies" as compensation for services rendered, laws vary from state to state as to whether a person can barter goods in return for services. States that do allow it have to involve the IRS and other government agencies to assign value to the goods, and have state and federal taxes applied. I can see the NCAAs view. I'd imagine the courts will say that the players can form a union. It would have to encompass all athletics, mens and womens, but wouldn't include any further 'compensation' to athletes. They are already compensated. It would only give them a voice to express poor living conditions, poor or unsafe facilities, ect. By forming a union, however, they would make themselves financially responsible for the assigned taxes on 'compensation' and union dues, as by law, an employer cannot pay those for an employee. Best guess here is after some flexing by both sides, a committee will be formed, comprised of former and current student athletes, former and current head coaches and NCAA brass.

Bledred
Bledred

Under the current system, what happens when Joe Smoe, the greatest player to ever play the game and future 1st round draft pick, breaks an arm or leg his senior year?  Whats that? No draft pick bonus? No NFL contract? Nothing? He gets $0 while the fat cats at the top get millions.  But at least he got an education...just ask the people standing in the unemployment line how valuable it is. 

factor71_rjn
factor71_rjn

@hansenNDInsider. student athletes play voluntarily and are not employees. think they're exploited but wrong direction to correct situation

BigBubba
BigBubba

This is terrific news.  I hereby support their unionization efforts, but along with that, call for all these players to pay taxes on all of their benefits (free education, travel, lodging including high class road lodging and bowl trips, meals, physician and dental care, rehab, tutoring, and so on).


If the players are smart enough to organize, they should be smart enough to figure out how to pay taxes on all of that stuff.  Please note that I am not calling for their stipends to be removed, though really, unionization indicates professionalism and should indicate that they do not receive scholarships to attend universities not to mention all the other benefits.

ThatDonGuy
ThatDonGuy

So tell me what happens when a football game is delayed because, say, all of the school's female athletes form a picket line around the stadium claiming that the school isn't paying them as much as the men?  "But the men bring in the money" - er, it's excuses like that from "management" that led to the formation of labor unions in the first place.  There's no way a football player is an "employee" while a women's soccer player isn't.

sean.itconsultants
sean.itconsultants

No biggee on getting unionized.  Things will change, but if FBS schools are unionized then anything above Div III will need to be unionized, also. Div III is all voluntary and no scholarships - if I am right - for the most part. Div III play for fun, so to speak. If they are ruled as employees then they have to be treated as employees and that involves stuff like workers' comp, etc and the like.  There would be trade-offs in the scheme of things and maybe certain conferences change and college athletics change too. I think many variables - walk-on athletes, removing scholarships (or firing). Can an employee quit his job and remain at the university and be under scholarship to complete his degree.   While there may be aspects of an employee relationship it does not measure up to the standard employee definition or even a sub-contract employee definition...Wow, in many ways I think the athletes are actually short-sided in some ways, but the union (any) would appreciate any help in controlling or expanding its influence.


WayLingleague
WayLingleague

This is great! What a wonderful way to educate kids about living in the real world. If the athletes want to be treated like a union, then that implies that playing football is a "job." And if it's a "job," then treat their total scholarship package like it's a paycheck. And that means if it's a paycheck, then tax it. According to Northwestern's web site, by the time you pay for tuition, books, room & board, etc., you're looking at $63,000 per year. Bundle in the cost of tutors, personal trainers, equipment and other benefits, and I'm sure you're looking at what's close to an $80,000 per year paycheck. 

So kids, do you really want to pay income taxes on that to both Uncle Sam and the State of Illinois? Something tells me you don't have home interest deduction to fall back on. 

MatthewEugeneHaag
MatthewEugeneHaag

@GoPSULions Except that they can't spend that money how they like.  They cannot use it to buy food or supplements etc.  Most of these guys don't care about your tuition cause they really don't care about college.  Its a stepping stone to pro sports.

jsmarkley
jsmarkley

@charlielaxYou do realize the NCAA is a BILLION dollar industry that pays zero in taxes right? You need to throw that minnow back in the water & find a bigger fish to fry.

fallenchemist
fallenchemist

@bartle.dale 

Well, that's mostly wrong.  Mostly, why wouldn't it "include any further compensation to athletes"?  If a union is allowed, it absolutely admits that these players are employees.  And once that happens, anything can be negotiated.  Of course they would be responsible for taxes once they are changed from amateurs to professionals.  But that can absolutely be offset by demanding a higher wage,  In essence, it is called "grossing up".  When I received a certain amount for moving expenses, the employer gave me a check for the actual cost of the move plus whatever it took to cover the taxes on that amount, so I broke even on the move.  It is quite normal.  If one is going to set the baseline here as the value of a scholarship, then their compensation would be that amount plus whatever it takes to cover the taxes.  But that would be completely arbitrary as a starting point.  There is no reason the slate wouldn't be wiped clean and compensation negotiations could go anywhere.  These players would have just changed from being amateur student-athletes to minor league professionals.

Simple. 

bubbalooey
bubbalooey

@Bledred Joe Smoe sues the university just like NFL players are suing the NFL for damages and will get millions.  Being a employee instead of a student/athlete is totally different, you can sue for damages.

TimHarb
TimHarb

@factor71_rjn @hansenNDInsider  Employment is voluntary in-fact in economics the employee is the commodity. That is exactly what these kids are.

fallenchemist
fallenchemist

@factor71_rjn@hansenNDInsider 

That's ridiculous.  All employment is voluntary.  What does that have to do with it?  But in most employment situations you can at least ask for a raise. Or find another employer in the same business that is willing to pay more.  Neither of those things are options for these athletes now, yet these schools (employers) think nothing of having far more hours of practice than was the case when this truly was an amateur sport, traveling much longer distances, playing more games, etc.  These players are professional athletes but not being treated as such.  All the risk, limited reward.  Sure the education is valuable, but given the billions of dollars being generated, the scale is falling over on its side, it is so out of balance.

fallenchemist
fallenchemist

@BigBubba 

Any salary, yes.  Travel??  I don't pay taxes when I travel for my work, and neither do you if you have to.  No one does.  Minor league baseball players don't pay taxes on that stuff, nor for seeing the team physicians.  So that's just stupid.  Same for lodging, physicians (because they are a necessary part of the job), etc.  You have no idea what you are talking about.

JeffBockert
JeffBockert

@BigBubba How much are the players making compared to what the coaches and the media are making off them? This is a group of people being exploited, plain and simple. 


mystafugee
mystafugee

@BigBubba Never mind the fact most student athletes aren't on full-scholarship.  

TimHarb
TimHarb

@ThatDonGuy  if student athletes are to unionize then they will need to get a vote from all of the student athletes if they want to avoid that mess

Boogieman1281
Boogieman1281

@ThatDonGuy Yep.  Look at a school like UConn.  The women's basketball team is definitely a bigger draw than the football team.

RyanMurphy
RyanMurphy

I enjoyed it while it lasted, at least.

fallenchemist
fallenchemist

@Jim Swanson, MS, CIH, CSP, CSHM 

That's kind of the point.  This exposes the fact that football and men's basketball long ago ceased to be amateur sports played by "student-athletes".  Once TV and big money got involved, it became the equivalent of minor league baseball but without the players having any rights to negotiate their compensation. 

TimHarb
TimHarb

@WayLingleague  The trainers would actually be considered management that trains its employees to do the job and the medical care would be under the same type of package that isn't taxable otherwise NFL players would have this included as well. The 40 to 60k would probably be more accurate for the out of state players but instate players get a lot less.

fallenchemist
fallenchemist

@WayLingleague 

You miss the point.  Paying taxes isn't a problem if the salary more than covers it.  For that matter, if we do away with the fiction that a lot of these kids belong in school (many don't), then it is just like a regular job.  Make $100,000 as a minor league football player, pay the taxes on that, and it is done.  What's the issue?  If some of those players still want to go to school, it will either become like hockey where there is a choice between university play or minor league play, or they will go to school on the side, or later after they earn some money.  It really isn't that complicated.  It would, however, be a wrenching change.  That doesn't make it wrong.

mjw149
mjw149

@WayLingleague I don't know why you think this is a big deal.  Of course they would pay taxes.  Lots of college students already pay taxes, btw, the ones who aren't 'student athletes' can, you know, make money from 'real jobs' that don't involve the risk brain damage without worker's compensation.

mystafugee
mystafugee

@WayLingleague Speaking of taxes, how about the NCAA and their programs start paying?  It must be nice to get those millions in TV revenue tax free.  

ThatDonGuy
ThatDonGuy

@WayLingleagueIf it's a paycheck, then let the school pay more than what the scholarship is worth - say, the amount that would cover the cost of attending after taxes were paid on it (and taxes on the extra amount to pay the taxes, and taxes on that amount, and so on)

RyanWI
RyanWI

@WayLingleagueYou don't pay income taxes on benefits for the most part.  Only on actual take-home paychecks. 

PWINGS
PWINGS

@WayLingleague  Let's take your argument to its logical extreme. If the players should pay taxes on their income, then their employers should also pay taxes, wouldn't you agree? Here's the rub, Northwestern University is a "tax exempt, not-for-profit" institution as is the NCAA and interestingly enough, the NFL. Any thoughts on removing their tax exempt status and getting them to pay their fair share?

MJT
MJT

@WayLingleagueI suspect that number is North of 100k, but I believe you have put your finger on one of the key issues...  It is high time that, at least for Football and Basketball, the participants forgo the mockery of the moniker "student athletes" and make these two sports AAA clubs for the pros:  set age limits, normalize pay for geography considerations and let the games begin.



GoPSULions
GoPSULions

@MatthewEugeneHaag@GoPSULionsThere are 120 FBS teams with 85 scholarships allowed per team for a total of 10,200 scholarship players.  Only 240 players were drafted last year, so not a stepping stone for the vast majority.

bartle.dale
bartle.dale

Not mostly wrong....in fact not wrong at all. The parts of my statement you are pointing out are followed by the statement 'I'd imagine'....meaning, basically, my prediction would be. A union contract can negotiate pay increases, and nearly any other topic. My statement was running off the fact that the story states they are not seeking any other compensation. If a union was formed and they wished to negotiate higher compensation, it would have to be discussed 'in good faith'. The second issue you point out is tax compensation, which i never said couldn't be reimbursed. Union dues, however, as I stated, cannot be paid by the employer. That is non-negotiable by law. Fact is, by the letter of the law, they actually are already non-amateur status...they are compensated in exchange for their services. 

BigBubba
BigBubba

@mystafugee@BigBubbaWhat does that have to do with anything?  Do only football players on scholarship get to organize?  What's the point of organizing then?  If they aren't on full scholarship, then they pay taxes on that part of benefits that they get (if they so choose to unionize).  


Or better yet, let these students pay their own way, play sports just like you would a student play or newspaper, and take loans like many of the rest of the students (up to 43% of students in debt according to stats I saw today).  Additionally, nothing is preventing these students from getting Stafford/GSLs today. 

AlbertE.Bannister
AlbertE.Bannister

@Boogieman1281- even if we ignore the fact that football tickets are $175-$420 and women's basketball tickets are $23, the real money comes from conference revenue sharing for TV rights, bowl appearances and NCAA men's tournament. 

GoPSULions
GoPSULions

@fallenchemist@WayLingleagueIf they are an employee, then all the compensation is taxable as well - tuition, books, room, board, ....  So add another $40,000+ so now as far as taxes it is on $140,000.  Everyone seems to miss the point that based upon the NCAA limited hours, they are currently earning the equivalent of about $75/hour in compensation for the free education, etc.

Jim Swanson, MS, CIH, CSP, CSHM
Jim Swanson, MS, CIH, CSP, CSHM

Interesting, but I think a college should be exempt, but I also think this movement may kill non-BCS programs due to cost and injury lawsuits.

TimHarb
TimHarb

@bartle.dale  I almost wonder if this is done to make sure schools just cannot kick a guy off the team for no reason.  Basically give that guy a fighting chance on disciplinary actions. Also if it is limited then who cares. The state can limit the union to only negotiate safety and so forth.


GoPSULions
GoPSULions

@TheSconnieNation@JeffBockertYou're right.  So if paid, where will the money come from?  Higher ticket prices for larger programs.  Small programs would not be able to afford to pay, or pay as much, if at all.

TheSconnieNation
TheSconnieNation

@JeffBockert They make nothing off of big time football.  Any profits go back into the system to pay for facilities, salaries, and non-revenue sports.  Generally speaking, less than 10 athletic departments finish the year in the black and that money is used for future projects or donated to the academic side of the university.  

GoPSULions
GoPSULions

@mjw149@BigBubba@mystafugee They are not going to be paid like NFL players.  So taxes are a big deal.  So lets say they get paid $50,000/year.  Their other compensation like tuition, room/board is now taxable too (about $40,000+/yr).  So their taxable income is $90,000/yr.  So after paying taxes, they won't actually earn that much more.   With existing NCAA time rules, a football player is actually earning the equivalent of about $75/hr already considering the cost of the benefits they get.

JeffBockert
JeffBockert

@BigBubba @mystafugee  Let them pay their own way? Do you know how much money the Universities are making off college football? They are paying their own way and then some. 

mjw149
mjw149

@BigBubba @mystafugee Of course they pay taxes, what difference does that make?  Everyone pays taxes, you write it like it's some kind of big deal.  They missing out on millions of dollars here, they'd love the chance to pay taxes.


NCAA has always fought this tooth and nail to avoid compensating injuries.  That's the larger part of the cost, really, since NCAA is just a minor league with extremely good TV contracts.  The basketball players at certain schools would probably be paid pretty well, as would certain football teams, but for most of these athletes (not students, because they get fired if they don't perform on the field) they just want some medical coverage.  I don't know if you read real news, but the cost of health is astronomical in this nation due to an unreformed system.

Boogieman1281
Boogieman1281

@AlbertE.Bannister @Boogieman1281 Going on 2011 numbers (most recent ones I could find), the men's basketball team brought in $13 million ($3.9 million profit) and the women's about $11 million ($3.8 million profit.) The point I was attempting to illustrate is that it would have to include every athlete on campus, including track, volleyball, etc.