As a former college athlete (albeit at the non-elite Division III level), I have always been a fan of college sports. And as a union lawyer for the last 30 years, I have watched with interest over the past few decades as professional athletes have successfully asserted their employment rights through the collective bargaining process. These two domains intersected last month in the case of Northwestern University v. Collegiate Athletes Players Association, in which a Regional Director of the NLRB ruled that scholarship football players at Northwestern are in fact employees of the University and therefore have the right to organize under the National Labor Relations Act.
Make no mistake: big-time college athletics—especially football and basketball—are big business, and have been for a long time. Universities collectively rake in billions of dollars each year in ticket sales, lucrative TV deals, merchandising and licensing arrangements. And what makes this all possible are the services of the premier athletes who compete for the schools that they attend. While universities like to call them “student-athletes,” all too often that formulation gets it backward: athletics take priority over scholastics in most of the big-time programs, because the dollars don’t flow unless the athletic programs are successful.
The time commitment for these athletes can be staggering, considering that they are (theoretically) full-time students. At Northwestern, the NLRB regional director found that football players devote 50-60 hours per week to their sport during August training camp, and 40-50 hours per week during the regular season/post-season, which can last up to four months. In addition, the Northwestern players are bound by a rigid set of rules governing their behavior on and off the field, their outside activities, their attire—even their access to social media. In other words, the lives of these athletes are controlled at almost every turn by the university they attend.
In exchange for their prowess on the football field or basketball court, and for their adherence to the university’s policies, scholarship athletes are well compensated indeed. Football scholarships at Northwestern can reach $76,000 per year in monetary value. Northwestern can afford this steep figure, because it took in $235 million in football revenue alone in the ten-year period from 2003 through 2012. (By the way, Northwestern’s head football coach earned $2.2 million in 2011, making him the university’s highest paid employee.)
No wonder, then, that the recent labor board decision found that Northwestern’s scholarship football players receive “substantial economic benefit” in return for competing for the university. This is one of the key legal tests in determining whether an employer-employee relationship exists. Likewise, the decision found that these players are subject to the university’s control in the performance of their football duties—another important legal factor.
Based on these findings, the regional director had no trouble concluding that the scholarship football players are essentially performing services under a “contract for hire” in exchange for payment of compensation, and therefore an employer-employee relationship exists that is subject to the provisions of the National Labor Relations Act.
This decision is not just a victory for the Northwestern football players. It is a victory for basic fairness and common sense. Many observers have felt for a long time that athletes at big-time college athletic programs have been taken advantage of by the institutions they serve. By giving those athletes the right to organize, this decision gives them a voice for collective action, to exert some measure of control over their working conditions.
And that, in a nutshell, is what forming a union is all about.