A group of Northwestern University football players, led by quarterback Kain Colter, are seeking to be represented by a labor union. The players took the first step to begin the process by filing a petition with the National Labor Relations Board (“NLRB”). This is a historic event, as this is the first time in college athletics that students are seeking to unionize.
According to ESPN’s “Outside the Lines,” quarterback Kain Colter initiated interest in union representation last spring. He was motivated to improve the conditions under which athletes play NCAA sports. Since that time, Colter worked with other athletes and sought the assistance of Ramogi Huma, president of the National College Players Association (“NCPA”). Their collective efforts culminated in the NCPA’s submission of the petition to the NLRB regional office in Chicago. A pre-election hearing is scheduled for February 7. Under the NLRB process, the labor board will next determine whether there is a sufficient and valid showing of interest and whether an election should be held.
News reports state that the Northwestern players have no gripes against Northwestern, but they feel mistreated by the NCAA. The athletes believe that the NCAA is too powerful. While the students help generate lots of money for the schools, many are unable to pay for basic necessities, many fear losing their scholarships, and many do not believe that they are given a real opportunity to be students. The students believe that improvements will only happen through a union.
There are limits and challenges to the students’ efforts to unionize. Foremost, the National Labor Relations Act (“NLRA”) only applies to private-sector employees. Therefore, students at state schools such as Georgia and The Ohio State University would not be able to unionize.
Most importantly, however, the NLRA only allows representation of employees—not students. Therefore, to prevail in their petition, the student athletes must persuade the NLRB that they are employees. This will be a hard challenge to tackle.
If the athletes are successful, the impact would be a game-changing event in the broadest sense. For example, if the student athletes are considered employees, they would be subject to the federal and state wage and hour laws. Compliance with these laws in an athletic setting would be a compliance nightmare for universities. Further. as employees, students would (or should) be subject to discipline up to and including termination of employment. How this would impact recruiting, scholarships and other issues remains unknown.
Applying everyday employment situations to the world of college sports raises some interesting questions, possibilities, and future story lines:
- Injuries sustained by athletes would be covered by workers compensation laws
- Student athletes, like other employees, could be subject to written performance reviews;
- A University decides to layoff an entire defensive line for poor performance because it gives up too many rushing yards per game and offers severance packages in exchange for release of claims;
- A quarterback who gets pummeled each game due to poor blocking sues his university for negligent retention, because the university employed an unqualified lineman;
- Athletes file discrimination claims over a coach’s heated half-time speech.
- Money that was once spent to fund Heisman trophy campaigns is now earmarked to fund a “Best Places to Work” campaign to help recruiting;
- Top performers are provided with “employee of the month” parking privileges at their dorms.
It is unlikely that the students will be successful in their petition. Nonetheless, their efforts will bring to light many concerns that need to be addressed.
For employers who do not wish to become unionized, the student athletes’ petition highlights an important message: If you want to remain a union free operation, take steps to minimize employee dissatisfaction. Employees who feel that they are treated fairly and are listened to by management are less likely to seek union representation. Some basic strategies include providing competitive pay and benefits, implementing fair policies, encouraging open communication between employees and management, and providing opportunities for employees to advance in the company.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
