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Wildcats await decision on unionization

| Friday, November 14, 2014

In March, the Chicago regional director of the National Labor Relations Board (NLRB) ruled that Northwestern scholarship football players are employees of the university and therefore have the right to form a union.

In April, Northwestern University appealed the decision to the full NLRB in Washington, D.C.

This weekend, the Northwestern football team, still awaiting a final decision from the NLRB, comes to Notre Dame with its unionization future unclear. Ed Edmonds, associate dean of the Notre Dame Law School, said either way the Board rules, the Northwestern case could be pivotal for the future of collegiate athletics.

unionization graphicSusan Zhu | The Observer
“I would like to think that this [case] would begin to change the conversation at the NCAA away from the idea that [athletics] should be equated to a hobby or a very modest expenditure of time,” Edmonds, who specializes in sports labor law, said. “I think we need to have a much more realistic conversation about how you try to balance intercollegiate athletics and its demands with the educational process.

“I mean, we’re basically the only country in the world that has sports so intertwined with the educational process at the highest levels. And I think what the case has helped advance is a conversation that is badly needed.”

Following the Chicago Regional Board’s decision in March, members of Northwestern’s football team voted on whether or not they wanted the College Athletes Players Association (CAPA) to represent them. Edmonds said the results of the vote will remain embargoed until the full NLRB’s ruling and will only be counted if the Board rules in CAPA’s favor.

Edmonds said the Board’s review period for the Northwestern case is typical, and he expects a decision by the end of the year. In the meantime, he said the case is an opportunity to consider how universities and the NCAA treat athletics and student athletes.

“The most significant thing about the case, to me, was the fact that the regional board ruled in favor of the players,” Edmonds said. “It actually causes everybody to look very carefully at the definition of a student athlete.”

In its list of core values, the NCAA prioritizes “the collegiate model of athletics in which students participate as an avocation, balancing their academic, social and athletics experiences.” Edmonds said this definition is problematic when student-athletes are pushed for significantly more time and effort than non-athletes.

“In the brief that Northwestern filed, [they] said, ‘Well, participating in college football is no different than 400 and some-odd other student activities that we have at the university,’” Edmonds said.

“They’re trying to say if you participate in the chess club or something along those lines that that’s the same as participation in intercollegiate football. I think those kinds of assertions, that seem laughable to me, make the arguments in this case sometimes really problematic.

“The incredible amount of money that conferences get, the incredible amount of money the NCAA basketball tournament generates — that places it in a far different category than anything else that Northwestern students participate in.”

The Northwestern NLRB case itself revolves around the definition of employment and whether or not scholarship athletes fit that definition. Notre Dame associate professor of law Barbra Fick, who specializes in labor law, said the definition of employee typically depends on pay and control.

In the Northwestern case, Edmonds said NLRB Chicago regional director Peter Sung Ohr ruled the football scholarships were economic benefits and coaches exercised some control over the players, thus making them employees. The University, though, objected to Ohr’s interpretation of scholarships as income.

“What Northwestern tried to present in this case … is [scholarship athletes] don’t pay any income tax on their scholarship benefits so that should be an indication that they’re not employees,” Edmonds said. “Ohr discounted that.”

In recent years, Edmonds said the idea of scholarships as income has grown more viable due to increasing tuition costs. According to the Northwestern University Office of Undergraduate Admission, the annual cost of attendance is $65,554, which totals to roughly $262,216 over four years.

“One of the things that has changed a lot over the years is as tuition has risen, the value of [athletic] scholarships becomes, to a lot of people, fairly important,” he said. “So even tough [student athletes] aren’t given a paycheck, they are given a pretty significant economic benefit. And I think in this day and age when a lot of people take on a lot of debt to go to elite private universities, that’s begun to change the way some people look at the issue of whether or not college athletes are exploited.”

The Chicago Regional Board did distinguish between scholarship and walk-on athletes, determining walk-ons are not employees. On its website, CAPA said it could possibly represent walk-on and “nonrevenue” athletes in the future, but “it would depend on the applicable labor laws and details surrounding their athletic arrangement.”

Former Northwestern quarterback Kain Colter, who graduated in 2014 and led the unionization effort last year, leads CAPA, along with former UCLA linebacker Ramogi Huma and former University of Massachusetts Amherst basketball player Luke Bonner.

On its website, CAPA lists its goals, which include “guaranteed coverage for sports-related medical expenses for current and former players, minimizing the risk of sports-related traumatic brain injury [and] improving graduation rates.”

Edmonds said if the full NLRB rules in favor of the players, CAPA could bargain over these issues on behalf of scholarship football players at Northwestern and 16 other private universities with Division-I football, including Notre Dame, if they voted for representation. The union could not represent athletes at public universities because the National Labor Relations Act does not grant public employees collective bargaining rights, Edmonds said.

“If the full board rules in favor of the players, it raises the question of whether any of the other private universities that play Division-I football would be approached by CAPA,” Edmonds said. “And I think CAPA would try to approach all of the schools.”

He said athletes would react differently from campus to campus to the prospect of unionization, but if the NLRB rules in favor of CAPA and the Northwestern players voted to unionize, Notre Dame scholarship athletes could consider joining CAPA, too.

Edmonds said the full NLRB’s decision is “a real toss-up” at the moment, but the Northwestern case is part of a larger conversation about the role of athletics at major universities.

“The big thing about this … is that maybe we can now begin to talk about student athletes — if you want to call them that — in a different way because they generate such an incredible amount of revenue for their university,” Edmonds said. “If you want to maintain this idea of a student athlete, then you really ought to switch it and say it’s an athlete student, because they’re a full-time athlete and a part-time student.”

Regardless of the outcome of the NLRB’s decision, Edmonds said the Northwestern case, along with several lawsuits that “strike even more directly at the core of the way the NCAA conducts business” will shape the future of college sports.

“I’m hard-pressed to imagine that the situation is going to be exactly the same in a decade than it is now,” Edmonds said. “To me, it’s part of a broader discussion about the role of intercollegiate athletics in the university that’s being pushed by a host of things, and this is just one aspect of a lot of things that are aimed at whether the NCAA’s model is really a workable one anymore.”

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About Jack Rooney

Jack is a 2016 graduate of Notre Dame, and The Observer's former managing editor. He is currently spending a year living and working for the University in Ireland, and writing columns to keep him busy. For more random thoughts and plenty of news links, follow Jack on Twitter @RooneyReports.

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