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Commentary by Mark Carter: College athletes as union members?

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By MARK CARTER

A regional director of the National Labor Relations Board has declared that student athletes are “employees” of a university that provides them with an athletic scholarship, and may form unions.

Northwestern University quickly announced that it would challenge the ruling to the National Labor Relations Board in Washington.

They should.

Meanwhile, universities and athletic departments across the country are scrambling to understand how this decision could impact them. They should.

The NLRB has jurisdiction over private-sector employers in most industries. Northwestern, like many universities, is a private institution. It also awards valuable athletic scholarships to many students in many sports.

But as student athletes, their scholarships depend on their observance of school and team rules. Those obligations are demanding and the athletes routinely put in 50 or more hours per week while training for and competing in the athletic season. For decades this commitment has been made for the “love of the game.”

Now, according to the NLRB, it is a job.

And the “employees” have the right to negotiate with their boss for better pay, better working conditions, and have the right to strike.

A union has the right to bargain over employees “working conditions.” Press accounts report that a motive for the Northwestern players was that practice was too hard. A union could negotiate with a university to reduce the hours of practice, eliminate certain drills, and reduce wind sprints and tackling drills.

If the employer doesn’t agree, the players can strike. If they do agree and an athlete feels that they have violated the contract by making practice too hard, the player can file a grievance and arbitrate asking for damages from the employer.

The union can negotiate for better benefits. A goal of the union seeking representation at Northwestern was to permit athletes to contract for commercial endorsements.

The union can also negotiate for higher “pay,” benefits, pensions, vacations, break time and seniority rights. A fourth year quarterback could demand the starting position over a third-year player based solely on seniority without regard to skill.

The NCAA limits the benefits a student athlete can receive from their school. If the school ignores these prohibitions, they can be fined or their athletic program can be suspended. Once suspended, they could not compete with other NCAA programs. Should a union negotiate “compensation” for athlete employees, the NCAA could be obligated to suspend the university’s athletic program simply because it honored its obligation under the union contract.

This ruling impacts only private universities. However, in states where the law grants public employees collective bargaining rights, the state is free to – and commonly does – adopt the NLRB’s precedent and public university athletes could form unions under state law.

Even where these state laws do not exist, if a public university operates its athletic department as a private entity, this ruling would have direct application.

Universities who are subject to this ruling, by the NLRB or a state law, have difficult decisions and preparations ahead. Athletes are only “employees” if they are on scholarship. If scholarships are not offered, the athlete – regardless of how hard they work – remains a student.

Some universities may choose to eliminate scholarships, particularly in sports which generate lower amounts of revenue where the costs necessary to negotiate contracts and arbitrate with unions would simply be too expensive.

Small universities with low athletic revenues may choose to do the same. Where universities maintain scholarships, their coaches and staff must learn labor law to insure they do not discriminate against or violate “employee” rights under federal labor law. The alternative is federal litigation against them and their programs.

Northwestern will appeal. The Obama-appointed NLRB will have the opportunity to reign in the regional director.

But will it? This NLRB has had successive regulations it created voided by the federal courts. It would be out of character for the NLRB to reverse agendas now. The federal courts can also refuse to enforce the ruling. But that relief is years away.

For the time being, it appears that college athletes – as nothing in this decision limits its application to football – may compete not only in intercollegiate rivalries, but in industrial disputes as well.

Mark Carter, a resident of Charleston and an attorney, is the chairman of the labor practice group for the firm of Dinsmore & Shohl LLP. Carter was a football “walk on” at an NCAA football program. mark.carter@dinsmore.com .


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