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Unionization for Notre Dame athletes?

| Friday, April 4, 2014

Much of the buzz on Capitol Hill this week centers on a lobbying effort to unionize scholarship college athletes who participate at private educational institutions. The Notre Dame administration will probably initiate as much of an adversarial role against these developments as it has about the so-called healthcare mandate that requires insurance coverage for contraceptives. The potential Notre Dame unionization nightmare began when Northwestern University football players, led by graduating senior quarterback Kain Colter, petitioned the National Labor Relations Board (NLRB) for the right to unionize — and won. He and other athletes walked the halls of Congress for two days this week to garner support and educate lawmakers of their concerns.
The visits came just a week after the NLRB Chicago regional director ruled that Northwestern football players on scholarship are employees of the university under the National Labor Relations Act and therefore have the right to vote to determine whether they can form a union. At present, major income-producing sports like football and men’s basketball are eligible under that NLRB ruling. Even though the issue is not directly before lawmakers, Colter said, “We’re up here raising awareness. Congress is an important part of the chessboard.”
Colter helped co-found an advocacy group, National Colleges Players Association (NCPA), which supports better health and safety guarantees for athletes, especially efforts to reduce the risk of brain trauma. Currently, the NCAA has no legal obligation to assure medical treatment for athletes, particularly after they leave school. After Colter and his fellow athletes visited with Sen. Sherrod Brown, D-Ohio, Brown said, “The right to fair treatment is why all workers, no matter the job or venue, should have the opportunity to unionize.”
For those whose knee-jerk reaction might consider a collegiate athletic union as a silly proposition, a number of factors bolstered the athlete’s assertions while Northwestern University’s carefully-prepared and laid-out case fell flat before the NLRB. First, the university hinged its presentation on past case law that now makes it difficult for Northwestern to find legal precedents for its appeal. Their critical precedent citation involves a 2004 Brown University case in which graduate assistant instructors were considered students, not employees. Northwestern argued that the graduate assistant rule also governed football players. But the ruling explains in detail why Northwestern is wrong and why the Brown ruling does not apply to scholarship athletes. Absent other case law, Northwestern has no other precedent upon which to base its assertions.
Secondly, the NCPA provided compelling arguments proving that the football players generate enormous revenue and quoting from the ruling, “great benefit” of the “immeasurable positive impact to Northwestern’s reputation [from] a winning football team.” They proved in this first round of the process that amateur athletes do not play merely for the glorified love of the game. Athletes proved that they are the workers of a huge commercial enterprise — not merely students grateful for the opportunity to participate — and were already being paid for their services through scholarships. They further proved that they were dependent upon their employer, the university, and therefore were entitled to form a union.
Finally, the athletes’ chronologies demonstrated the hour-by-hour, day-by-day rigorous control that coaches have over each scholarship player’s life, which the NLRB concluded was like an employer has over an employee, not the kind of control a school has over a student. The NLRB ruling, in fact, dedicated nearly half of its 24-page ruling to address these details. The athletes provided overwhelmingly detailed descriptions of their practice schedules, workout requirements and how coaches closely supervised all facets of their lives. They cited how coaches approved living arrangements, controlled their use of social media (players must be connected to a coach), dictated dress codes and instituted certain restrictions on off-campus travel. Coaches also oversaw the registration of automobiles and demanded copies of each player’s study schedule.
What part of the Northwestern athletes’ assertions is untrue for Notre Dame players, or for that matter, any player at other NCAA institutions? We can joke that the ND women’s basketball program should be included in our list before the men’s team with its “one-and-done” reputation, but joking and bias have no place with the subject of safety. Bias against unions also has no place in this matter. It is ironic that recently the anti-union culture and general fervor of the southern states overshadowed efforts to better workers’ compensation through a management-labor partnership board at the Chattanooga Volkswagen plant in Tennessee, like at every VW plant worldwide. Even the Republican governor threatened to withhold $300 million of incentives from VW if the plant unionized. Such closed-eyed ideological opposition prevents the students from better representation in the name of political purity.
Just like it is long past time for a playoff system to determine the football national championship, guaranteeing collegiate player benefits is long overdue as well. If it takes unions to better care for our current “chattel” athlete, so be it. A modern society demands innovative thinking without old stereotypical or ideological bias. Unions are good for society when they operate properly. Give the Notre Dame athletes the dignity they deserve.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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