Expert Explains Everything You Need to Know About Northwestern Union Ruling

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Expert Explains Everything You Need to Know About Northwestern Union Ruling
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Kristi Dosh is a sports business reporter and analyst who has previously worked for such outlets as ESPN, Forbes and Comcast Sports Southeast. She is also an attorney and author of a book on the business of college football, Saturday Millionaires.

On Wednesday, the National Labor Relations Board’s regional office in Chicago ruled in favor of scholarship student-athletes at Northwestern, declaring them employees and allowing them to collectively bargain with the university going forward, much in the same way we’re familiar with professional sports leagues collectively bargaining with their athletes. Here are the answers you need to know about how this ruling might impact college football.

 

What does the ruling mean?

Student-athletes who receive scholarships to play football at Northwestern are employees, according to the NLRB, and can form a union to collectively bargain issues like compensation and safety with the university. The ruling also sets a precedent that would allow scholarship football student-athletes at other private universities to seek a similar ruling from the NLRB. Northwestern will appeal the ruling.

 

Why doesn’t the NLRB ruling apply to student-athletes at public universities?

The NLRB only has jurisdiction over private sector employees, which in the post-secondary education world means only private universities. Public employees are subject to state labor law, so student-athletes at public universities would have to attempt to unionize under their respective state laws. Twenty-four states are “right-to-work” states that either prohibit or limit the ability of public employees to collectively bargain, so student-athletes in those states would have a much more difficult battle.

 

Does that mean some scholarship football players might be employees and able to collectively bargain with their universities and some may not?

Yes, that’s exactly what that means. One could imagine the impact that might have on recruiting if some schools can offer you employee status and the associated benefits and others cannot.

 

What does this mean for student-athletes outside of football?

Nothing at this point. The ruling only applies to football student-athletes who are on scholarship, not even walk-on football student-athletes. The reasoning behind determining scholarship football student-athletes as employees was broken down like this: (i) student-athletes are bound by rules set forth by the athletic department that do not apply to other students at the university, (ii) scholarship football student-athletes were found to spend more time on football-related activities than on academic pursuits, (iii) the recruitment process centered more squarely on a student-athlete’s on-the-field abilities than his academic achievements and (iv) the student-athletes were found to provide “valuable services” to the athletic department because of the millions in revenue they generate.

While most sports would meet the first three factors, only men’s basketball could likely meet the fourth. However, labor expert John Langel, a partner at Ballard Spahr Stillman & Friedman LLP, says he thinks student-athletes in other sports could argue their value comes in forms other than millions in revenue generation, such as winning a national championship or having a donor provide funds for a new facility.

 

Does this mean we’re moving toward pay-for-play?

Not necessarily.

One of the things that can be collectively bargained is compensation, and the College Athletes Players Association has mentioned wanting an increase to cover cost of attendance. However, state and federal wage laws don’t necessarily come into play.

As it turns out, just because the NLRB finds these student-athletes to be employees doesn’t mean they’re employees under state or federal labor laws or under the tax code. Those are separate determinations, which means Northwestern might not be legally obligated to provide worker’s compensation or any of the other benefits that come with employment. Those issues could be collectively bargained, however.

 

How might this impact Title IX?

Additional compensation or benefits that only applied to football student-athletes could be a Title IX issue. For one, Title IX requires that athletic financial assistance be awarded to men and women in percentages “substantially proportionate” to their participation numbers.

For example, if 55 percent of the student-athletes are male, then something close to 55 percent of the athletic financial assistance should go to male student-athletes.  Presumably, a school would already be in compliance, so adding financial assistance to only one side of the equation by increasing compensation to football players would require that you either decrease the number of male student-athletes or increase compensation to female student-athletes to keep the equation balanced.

 

Does this mean players could strike or universities could lock out?

Yes, but it would look a little different than an NBA or MLB strike or lockout.  

In the event of an NCAA players' union, just one university could be experiencing a strike or lockout versus all of college football since the collective bargaining agreements would be between the student-athletes and each university. A professional strike or lockout happens at the league level.

 

What’s the worst-case scenario for universities?

Currently, the worst-case scenario is Northwestern losing its appeal to the NLRB in D.C., which is sure to come in the next couple of weeks. If it lost, it would have to either collectively bargain with the union or risk an unfair labor practices allegation, which would land it back in front of the NLRB. That route, however, would allow for an appeal to a federal court and get Northwestern out of the NLRB’s purview. Langel says it could take years to sort things out if we go down that path.

 

Follow Kristi Dosh on Twitter @SportsBizMiss.

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