~ A Mediator's Musings ~

April 18, 2014–Northwestern Football and the Union–What Difference Will It Make?

So Northwestern football players may become members of the first union to represent college athletes.  The College Athlete Players Association (“CAPA”), a group apparently consisting of one ex–Northwestern football player named Kain Colter and two other individuals, but backed (for reasons that are not totally clear) by the powerful United Steelworkers union, persuaded enough Northwestern football players to sign cards asking that a vote be held as to whether CAPA, a self-styled labor union, should represent those players, as employees of Northwestern University, in a collective bargaining process. Northwestern, of course, objected, primarily on the ground that the players are students who happen to play football and not employees of the university. Mr. Peter Ohr, Regional Director of the National Labor Relations Board (“NLRB”), in a lengthy opinion found, over Northwestern’s objections, that those football players who receive athletic scholarships are employees of Northwestern and that a vote should be held as to whether CAPA should be their collective bargaining union representative. Northwestern has now appealed this ruling to the full NLRB and then will undoubtedly appeal to the courts if it does not prevail. There have also been some press reports that suggest that it isn’t obvious that the players will vote to unionize when the ballots are counted if Mr. Ohr’s ruling is upheld. But, stepping back a little, what should we make of all this?

You may recall our musings on Jeremy Lin (remember him?) and “Linsanity.” There we considered whether we could expect the Ivy League would, as suggested by no less than the Wall Street Journal, “embrace” sports, meaning, apparently, become competitive on the field and the court with the large universities whose games regularly appear on television. In other words, would the Ivies go into the entertainment business? Make no mistake–that’s the business that Northwestern and similar universities are in. In the abstract, it may seem at least a little incongruous that so many of our institutions of higher learning that carry such academic prestige–Northwestern, Michigan, Duke, Virginia, Stanford, Cal Berkeley, Wisconsin, to name just a few–are engaged in an entertainment business that has no obvious scholastic value but produces enormous revenues, but that’s precisely the case. And, while we can certainly imagine a different result (and the NLRB or the courts might well come to a different result), we shouldn’t be totally shocked when Mr. Ohr, noting the business these universities are in and the revenues that that business generates, decides that in the case of Northwestern, at least, the football players who receive scholarships at least in part to produce those revenues are more employees of the entertainment business than they are students at the university.

There’s certainly been a fair amount of chatter and expressions of horror at what this decision will mean to the world of college football and perhaps college basketball, largely from fans–customers of the entertainment business–and the journalists who write about sports for those same fans–in effect, writing about a part of the entertainment business. While the ruling and any resulting unionization could theoretically have a drastic effect on the college football we watch on TV, the actual scope of Mr. Ohr’s ruling is fairly narrow. In the first place, it only could only directly affect 17 of the approximately 125 schools in what’s called the “Football Bowl Subdivision” (“FBS”) of the Division I NCAA football program, essentially those schools whose teams compete for spots in college football’s major post-season bowls and whose games are shown on ESPN and other networks. Those 17 universities are the only private universities in the FBS, and only private universities fall within the jurisdiction of the NLRB and the federal statutes and rules governing collective bargaining and unionization. The other members of the FBS are state universities, and each state has its own rules that determine when its employees are eligible for collective bargaining. And we would be surprised if the elected officials–governors and legislators–from most of the states whose public universities have successful FBS football programs would look with favor upon unionization of their teams and perhaps interference with those teams’ competitive success, a success that we assume is perceived as very popular with the voters. In fact, an Ohio legislative committee has already begun the process of declaring that in Ohio, at least, college athletes aren’t employees. If Mr. Ohr’s opinion is upheld, we certainly wouldn’t be surprised if even those states that have a history of favor toward collective bargaining by public employees made moves to be sure that their universities’ football (and probably basketball) players aren’t treated as state employees. Of course, that could put the 17 private universities at a potentially huge disadvantage, at least at the bank and perhaps on the field, which might be a reason, whether articulated or not, for the NLRB, the courts or even Congress to act to overrule Mr. Ohr.

Second, Mr. Ohr’s ruling is very fact-specific, stressing the time commitments in particular that he found Northwestern football players devote to football as distinguished from academic and other pursuits, the control that he found that the football staff had over the behavior and living arrangements of the players, and the findings he made regarding how football scholarship players are identified and admitted. We don’t know whether other private universities, much less public universities, adopt the same practices for their football teams and, even if they do, the extent to which those same practices apply to other athletes. We can imagine, for example, that Northwestern’s football team, which, according to Mr. Ohr, has 112 players, with 11 on the field at a time, might well require more time of its players than a basketball team of, say, 15-20 players, with 5 on the court at a time. Moreover, since Mr. Ohr clearly believed that the football players are employees of a lucrative entertainment business, it’s hard to see how his logic would apply to other college sports–virtually all other sports than football and basketball–which don’t produce much if any revenue and probably operate at a big loss. Indeed, one of Northwestern’s arguments is that the revenues from the football business subsidize the other athletes at Northwestern whose sports don’t generate much revenue, so the entertainment “business” in which Northwestern engages operates at an overall loss–that is, the revenues are used to provide opportunity for all students to realize the educational benefits of participating in athletics and thus are consistent with the academic mission of the university. Not a bad argument, actually; time will tell whether it (as well as any of the other arguments Northwestern raises) will prevail.

So, how much does Mr. Ohr’s decision matter?   That remains to be seen, but there are good reasons to think it won’t matter much.   On the other hand, the effects on the universities and the players could be serious if the players really are employees, effects totally independent of whether they join a union or not.   Indeed, the players could find themselves looking at the truth of the old adage, “Be careful what you wish for.” We’ll consider all that next time.

Your “I’m not in the entertainment business (yet)” mediator