NLRB Forces Unionism on NCAA Sports

Northwestern footballIt's hard to imagine a blurring of the line between amateur and professional sports more flagrant than the National Labor Relations Board Chicago regional office ruling last Wednesday that Northwestern football players, as "employees," are eligible to unionize. Cheerleaders for the decision include the United Steelworkers and the NFL Players Association. This is to be expected. Unions envision more members, dues and bargaining power. Though the NLRB decision applies only to athletes on scholarship at private institutions, only the naïve would believe it won't influence practices at state schools – or the willingness of unions to organize players at either.  This process, if fully realized, would severely corrupt higher education itself and not just college football. 

That college sports has become a major industry is pretty much an open secret. And it has become standard editorial moral fodder. Many a sports writer has aimed arrows at campus administrators who tout the virtues of amateurism, yet treat their sports programs – especially football and basketball – as financial crown jewels. So-called "student-athletes" are amateurs more in name than in fact, assuming the role of full-time employees. They know, like everyone else in academic life, that winning sports teams are a matter of pride and prestige. It means boosts not only in ticket sales and television revenues, but also in alumni donations. And money does talk. During the 2011-12 football season, for example, the University of Texas led all NCAA programs with a whopping net gain of $77.9 million (i.e., revenues minus  expenditures). Next in line were the Michigan, Georgia, Florida, Alabama, LSU, Auburn and Notre Dame football programs, which respectively, generated net profits of $61.6 million, $52.3 million, $51.1 million, $45.1 million, $44.8 million, $43.8 million and $43.2 million. Such numbers only will increase when the planned College Football Playoff system kicks in and when the NCAA renegotiates long-term media contracts. And in college basketball, skybox suites are becoming the norm among top programs. The University of Louisville, for example, pulls in more than $6 million annually from its 72 luxury suites at its home arena, the KFC Yum! Center. 

Time magazine published a cover story at the beginning of last fall's football season, "It's Time to Pay College Athletes" (September 16, 2013). The title was self-explanatory. Since college football is a business, argued author Sean Gregory, college football players by definition are employees. The cover featured an action pose photo of Texas A&M quarterback Johnny Manziel, who in 2012 became the first freshman in history to win the Heisman Trophy as the nation's best college football player. The presence of Manziel, suspended for the first half of the 2013 season opener for having signed unauthorized autographs several months earlier, has boosted direct and indirect revenues to his university by an estimated $300 million in just one year. Though the NCAA and Texas A&M each determined he had not personally benefited from the signatures, he notwithstanding anticipated that his autographs would be sold for a profit. So why not compensate him, and many athletes like him, beyond the value of their scholarships? Gregory wrote:

Players are essentially working full-time football jobs while going to school; they deserve to be paid more than a scholarship. Because even full-ride athletic scholarships don't cover the full cost of attending school, athletes are often short a few thousand bucks for ancillary expenses on top of tuition, room and board, books and fees: money for gas, shampoo and, yes, maybe a few beers. Some athletes are on only partial scholarship or are walk-ons still paying full tuition.

Gregory soon followed up this story with another one on the need to unionize.  He wrote: "(I)f college players want better financial, health, workers' compensation and educational benefits, they need to keep fighting…The players should take APU [All Players United – an ad hoc protest group formed by football players at Northwestern, Georgia and Georgia Tech] to the next logical level and actually form a real labor union." Such logic is registering with a growing number of college football players – especially Northwestern.

This past January 28, Ramogi Huma, president of the College Athletes Players Association (CAPA), a recent offshoot of a more established group, the National College Players Association (NCPA), filed a petition with the Chicago regional office of the National Labor Relations Board requesting a review of an application by group of players at Northwestern University in Evanston, Ill. for union recognition. Huma initially had been approached by Kain Colter, who since 2010 had been the sometimes-starting quarterback for the Wildcats. Accompanied by officials of the United Steelworkers, Huma also filed union pledge cards signed by what he said was an "overwhelming majority" of players. Under longstanding federal law, at least 30 percent of the employees at a nonunion worksite must express a desire for unionization to trigger an NLRB-supervised representation election. Huma, himself a former UCLA linebacker, declared: "This is about finally giving college athletes a seat at the table. Athletes deserve an equal voice when it comes to their physical, academic and financial protections." The pair, in fact, are in Washington today and tomorrow making their case on Capitol Hill, addressing issues such as taxes, dues and NCAA rules.

Last Wednesday, NLRB Chicago Regional Director Peter Sung Ohr handed down his awaited decision: The Northwestern players should have standing for consideration as a bargaining unit. In ruling in favor of the College Athletes Players Association (see pdf), Ohr stated that the player-plaintiffs "fall squarely within the [National Labor Relations] Act's broad definition of ‘employee' when one considers the common law definition of ‘employee.'" The players, he argued, have committed themselves to what amounts to a full work week to the Northwestern University football program. And their scholarships – there are 85 – are tied to their performance, both in practice and during a game.

The decision only affects athletes on scholarship attending private colleges and universities. And it applies only to NCAA Division 1 men's football and basketball. That said, if this ruling holds up – it can be appealed to the national board – the eventual result could be a full-scale merger of the worlds of college sports and collective bargaining. The United Steelworkers, among other unions, is paying close attention. The union knows that plenty is in it for them. CAPA's Huma, in fact, approached the union some time ago. He made a believer out of Steelworkers President Leo Gerard. "When Ramogi first reached out to us years ago, we were like an overwhelming part of the population in that we figured athletes were lucky because they're getting an education," said Gerard in January. "But then we looked into it and realized it's a myth. Many don't get a true education and their scholarships aren't guaranteed."

The National Football League Players Association (NFLPA) also is applauding the NLRB decision. The association, in fact, passed a resolution supporting the collegiate players bid for unionization. It read: "Resolved, that the NFLPA pledges its support to the National Collegiate Players Association (NCPA) and its pursuit of basic rights and protections for future NFLPA members." The pro football players union is thinking long-term. It fully understands that college football players, having acquired collective bargaining experience, can be especially effective if and when they become part of the NFL.

Unionization of college athletes, on the surface, appears to be an idea whose time has come. All too often, "student athletes" are little more than athletes who happen to be students. Since major college football coaches are paid on average $1.64 million a year, a jump of more than 70 percent since 2006, it only makes sense that players should be allowed to hop aboard the money train as well. Yet the closer one looks at the likely consequences of union membership, the less attractive the idea becomes. The following are several of these consequences, which, taken as a whole, would transform the amateur status of big-time college sports from periodic nudge-and-wink hypocrisy to a dangerous undermining of the mission of higher education. 

First, unionism and college athlete paychecks go hand in hand. If the NCAA were to institute a revenue-sharing program by which to pay athletes, whether at all schools or just the top tier, unions will have an interest in representing them. Ramogi Huma views the United Steelworkers involvement in the CAPA case as "charity work." It's not a "grab," he emphasizes, because the union is receiving no dues from CAPA or the Northwestern players. This view is naïve. Unions are not disinterested parties who act in service of an abstract "fairness." They are business organizations. If private colleges and universities accede to demands to pay their athletes, unions will have every incentive to do business with them, demanding the best contracts possible. And that means ratcheting up demands when contract periods approach expiration. And suppose college players, highly dissatisfied with a contract offer, go on strike? It's happened more than once in the NFL. What makes anyone think college athletes won't be as calculating?

Second, student-athletes on the payroll would have little or no incentive to stay at a given institution. A top-rated college football or basketball player, believing he is underpaid, will have every reason to exercise the equivalent of free agency and transfer to another, better-paying institution. Thus, if a football player at Stanford thinks he can get a better deal at Southern Cal, then it's goodbye Stanford. The opportunity to turn pro while retaining student status would fray an athlete's school ties like nothing else. One only can imagine the bidding wars among top-ranked universities with deep pockets to attract players from other teams. Unionization would facilitate this erosion of institutional loyalty.

Third, every institution of note will want to get into the game. Advocates of unionism assure us that only several dozen universities would be in a position to participate in revenue-sharing; the Time article suggested "only the 60 or so schools in the power conferences" would consider such an option. Yet anyone familiar with the logic of college sports knows that non-elite institutions also will want a piece of the action. They, too, have competitive zeal. Who wants to be associated with a team that, year after year, can't make into any post-season bowl game or tournament? The last thing any NCAA Division 1 school wants is to lose top players to free agency. Campus officials will spare few expenses in acquiring, or at least keeping, their franchise players. To emphasize: When colleges and universities mimic the behavior of pro sports enterprises, they effectively become pro sports enterprises.

Fourth, the financial incentives of focusing full-time on athletics will mean that athletes will have to spend more time than ever on sports in order to justify their paychecks. And more time for sports – as though 40 or more hours per week isn't enough as it is – means even less time for academics. Student-athletes typically downplay their student side in favor of their athlete side. But if they turn pro, but with the requirement of retaining academic eligibility, they will "need" more curriculum and attendance corner-cutting than ever. And there will plenty of people on campus to service that need. The ongoing recent scandal at the University of North Carolina, which has involved allegations of widespread grade-changing and offerings of nonexistent courses on behalf of student-athletes, is but one of the more obvious cases. To allow student-athletes to turn professional would ensure a lot more scandals. Is this what we want for higher education?

Fifth, while the recent NLRB regional office ruling applies only to private colleges and universities, only a naïf actually could believe that public institutions won't be tempted to enter into a collective bargaining agreement if union negotiations elsewhere bear fruit. Perennial (public) football powerhouses such as Florida State, Nebraska and Ohio State will have every reason to invite a union to campus if that's what it takes to prevent perennial (private) football powerhouses such as Brigham Young, Notre Dame and Southern Cal from having the best chances at recruiting the nation's best high school players.

Sixth, the NLRB mandate inevitably will be expanded to include women's sports. Title IX of the Education Amendments of 1972 requires equal treatment by sex in college athletic programs. If salaries and benefits turn out to accrue solely or even mainly to men, a lawsuit will be inevitable, claiming violation of the Equal Protection Clause. Campus administrators, at the threat of a federal lawsuit, will comply by radically boosting funding for women's sports. Union organizers could double their fun. In response to possible legal action, administrators may take the easy way out and cancel "minor" men's sports programs so as to keep the major ones, such as football and basketball. It's happened many times over the last few decades, the NCAA men's swimming team at my undergraduate alma mater, the University of Kansas, being merely one casualty. University of Maryland business professor Peter Morici recently went so far as to write: "Title IX would compel universities to pay women athletes what they pay men in football, basketball and other sports, and this would bankrupt virutally all Division I athletic programs." Such are the rewards of the single-minded pursuit of gender equity.   

Finally, collective bargaining for campus jocks would create a jarring and permanent psychological change in the way we view higher education. However much major college sports today are fraught with hypocrisy, they retain enough of their amateur status to make a fitfully convincing case. This would not be the case if and when a campus officially anoints selected student athletes as professionals. Fellow students, not to mention alumni, may resent such athletes as not being one of them. College officials certainly will take a dislike to this deification of athletes. And so would college sports officials. Big 12 Conference Commissioner Bob Bowlsby weighed in last year: "I just don't think we ever want to go down the path of creating an employer-employee relationship with student-athletes. This is higher education, and it always ought to be higher education." Early this year, NCAA Chief Legal Officer Donald Remy remarked: "This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education."

Yes, we all know that the reality of amateur college athletics often falls short of the rhetoric. But in the end, campus administrators have a moral responsibility to separate amateur and professional sensibilities as much as possible, and to convey to the public that the prime purpose of attending college is to get an education. Star athletes have the option of turning pro before graduation anyway. Hundreds, if not thousands, including Johnny Manziel, have exercised this option over the years. A number of pro superstars, such as the NBA's LeBron James and Kobe Bryant, arrived straight out of high school, skipping the pretense of being college students (that this option is now closed off, by the way, is due to players' union collective bargaining agreements). Given that it's all about the money, such a career strategy is more honest than leading a dual life. Allowing college athletes to collect salaries would corrupt higher education far more than retaining current arrangements, "hypocrisy" and all. Unions should grasp as much, and do their organizing elsewhere.