University challenges athlete unionization
In a case that college sports leaders expect to go to the Supreme Court, Northwestern University on Wednesday asked the National Labor Relations Board to deny undergraduate athletes the status of employees with a right to join a labor union and bargain for salaries and other benefits. That filing is here.
The university’s appeal to the Board challenged a March 26 decision by a regional NLRB official that Northwestern must treat its football players as employees and hold an election on whether they want to unionize. That ruling, the university said, “set out to alter the underlying premise upon which varsity sports is based” — that students go to college to be educated, not to work for a living.
While the fifty-page filing was heavily focused on arguments against the details of the ruling by Regional Director Peter Sung Ohr of Chicago, it also relied upon a 1980 Supreme Court ruling (NLRB v. Yeshiva University) rejecting a claim that university faculty members with managerial duties were employees.
In that decision, the Court had remarked that “the ‘business’ of a university is education” and that “the principles developed for use in the industrial setting cannot be imposed blindly on the academic world.”
The organization that regulates college sports, the National Collegiate Athletic Association, has been following the Northwestern case closely. NCAA President Mark Emmert, appearing last month on the CBS-TV program, “Face the Nation,” said that the Ohr decision “so fundamentally changes the nature of what college sport is about. And it blows up what is one of America’s iconic activities. I think it winds up in the Supreme Court.”
The case goes first to the five-member NLRB. Beyond the Board, the prospect for review in a federal appeals court is complex, and depends upon the nature of the dispute and how the parties react to a Board ruling. Ultimately, an appeal to the Supreme Court is sometimes — but not always — an option.
This case only applies to college athletes at private institutions, and only to those who have scholarships. Federal labor law does not apply to those who work for state or local governments, such as a state university. Most colleges insist that they lose money on their sports programs, but universities in the major conferences of football and basketball generate huge revenues through those programs.
The case involves a Northwestern football quarterback, Kain Colter, and a labor group that he helped create to represent college athletes, the College Athletes Players Association. In its filing Wednesday, Northwestern University disputed whether that group is truly a labor union, and noted that, as of now, it has no labor contract with any employer.
While most of the document is focused on the scope of federal labor law, it does make a passing constitutional claim based on the doctrine — founded in the First Amendment — of academic freedom. If a player attending on scholarship were to lose that because of failings or academic misconduct as a student, the university argued, that would be subject to union arbitration review, “which would obviously interfere with academic decision-making that has nothing whatsoever to do with the purported economic relationship between the student-athlete and the university.”
The student athlete pursuing the case and the college sports union will have a chance to reply to the challenge before the NLRB rules. That process is likely to take several months, and appeals would take longer.