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 Wildcats quarterback Kain Colter has teamed up with Ramogi Huma,
a former University of California-Los Angeles player turned
activist, to form the College Athletes Players Association (CAPA), a
first-of-its-kind labor union.
CAPA has asked the National Labor Relations Board (NLRB) to schedule
an election so Colter and his teammates can vote on whether they
want union representation. The agency is due to hold a preliminary
hearing on the matter this month in Chicago.
In deciding whether an election is warranted, the NLRB must answer a
question that has dogged college athletics for decades. Are players
only students or are they effectively employees?
College sports is immensely profitable for schools, coaches,
boosters, conferences and commercial interests. The National
Collegiate Athletic Association (NCAA), which organizes sports
programs for roughly 420,000 college athletes, reported $872 million
in 2012 revenue, according to an audited statement.
If the NLRB decides that players are employees who have a right to
unionize, "it's going to turn college athletics on its head," said
Joseph Farelli, a labor lawyer at the firm of Pitta & Giblin who has
represented both employers and unions.
The board has never considered this issue before, said labor
lawyers. A spokesman for the NLRB said he was not aware of any
previous case and declined further comment because the issue is
pending.
Any NLRB decision on the Northwestern case would only apply to
athletes at private universities because the board has jurisdiction
only over private-sector labor relations.
LONG HAUL AHEAD
The Northwestern Wildcats are historically underdogs on the football
field, but the players may be executing their unionization play at a
favorable time.
Under U.S. President Barack Obama, the NLRB is controlled by
Democrats, the party friendliest to organized labor, which supports
CAPA. The NLRB's record suggests it may be open now to declaring
certain groups of students to be employees.
CAPA has said it aims to ensure that players get medical coverage
for sports-related care, to improve graduation rates, and to push
for fair compensation. University and NCAA medical insurance
generally does not cover players' sports-related conditions that
continue after they leave college.
An "overwhelming majority" of the team's roughly 85 scholarship
players has expressed interest in unionizing, according to CAPA.
A decision favoring the players would be an incremental victory,
labor lawyers said, but it would almost certainly be subjected to a
long legal appeals process, making any widespread unionization of
college football a distant prospect.
The NCAA has said in a statement that the Wildcats players are part
of a "union-backed" power grab that will undermine their educations.
Northwestern has said it is proud that its students are raising
issues about athlete safety, but that unionization and collective
bargaining are not "appropriate."
"At Northwestern, students who participate in NCAA Division I
sports, including those who receive athletic scholarships, are
students, first and foremost," university spokesman Alan Cubbage
said in a statement.
"Participation in athletic events is part of the overall educational
experience ... not a separate activity."
SPORTS IS BIG BUSINESS
College sports programs generate billions of dollars in revenue for
the NCAA, based in Indianapolis, and its member universities.
Players are barred by association rules from receiving a cut of the
proceeds, or from drawing a salary.
The NCAA gets $770 million a year under a 14-year, $10.8 billion
deal from CBS and Turner Broadcasting for the rights to show the
NCAA's annual "March Madness" basketball tournament.
ESPN pays the association $125 million a year to show its Football
Bowl Championship games, according to media reports. The NCAA in
turn distributes revenue to individual schools.
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Northwestern, for example, got $27.5 million in revenue from its
football program and $11.7 million from its basketball program in
the 2011-2012 season, according to U.S. Department of Education
statistics compiled by CAPA and Drexel University.
The university's head football coach took home about $1.3 million in
2012. His players each got athletic scholarships worth about $56,500
that fell several thousand dollars short of the full cost of
attendance, said the CAPA-Drexel report.
Huma and Colter are quick to emphasize that the union push was not
prompted by any mistreatment by the university, located in Evanston,
Illinois, on Lake Michigan just north of Chicago.
CAPA, Huma said in an interview, only wants the NLRB to look at the
"facts" and "accurately recognize this as an employer-employee
relationship that gives the players labor rights."
Colter, in a statement provided by CAPA, asked:
"How can they call this amateur athletics when our jerseys are sold
in stores and the money we generate turns coaches and commissioners
into multi-millionaires?"
Labor unions are backing the players. The United Steelworkers union
has said it will cover CAPA's legal expenses. Richard Trumka,
president of the AFL-CIO, the largest federation of U.S. labor
unions, has offered verbal support.
EMPLOYMENT RELATIONSHIP?
CAPA's future, for now, is in the hands of the Chicago office of the
NLRB, a federal agency that oversees private-sector union elections
and polices unfair labor practices. At the upcoming hearing, the
university and the union will argue over whether the players exhibit
the type of relationship with the university that workers typically
do with employers.
Standard benchmarks include the extent to which an employer controls
an employee's schedule; the discretion the employer has in hiring
and firing; and evidence of compensation.
"Schools dictate where players can live, what they can eat, whether
or not they can even leave a hotel during a trip, their off-season
schedules," Huma said.
The NCAA has indicated it will defend its long-standing position
that college sports participants are not employees, but "student
athletes." The organization began using this term after two state
courts in the 1950s and 1960s found that scholarship students who
died while performing athletic duties were effectively college
employees with workers' compensation rights.
Since then the NCAA has largely blocked further workers'
compensation claims, said a Buffalo Law Review analysis.
"There is no employment relationship between the NCAA, its
affiliated institutions or student-athletes," NCAA Chief Legal
Officer Donald Remy said in a statement.
Some lawyers said the closest analogy to the college athletes'
situation may be the NLRB's treatment of graduate students who have
tried to unionize. The board has evaluated whether graduate
students' work for their colleges is incidental to their education,
or whether it renders them employees.
The NLRB's decisions on this issue have vacillated, as board control
has shifted from one political party to the other. "It's very
political, it's not unusual for the law to change as you change
administrations," said labor lawyer John Lomax at the firm of Snell
& Wilmer.
Athletes differ from graduate students in at least one important
respect, said Foley & Lardner lawyer Jon Israel.
"They're given a scholarship — compensation — in return for services
that have nothing to do with academics, it's entirely based on
football," Israel said.
(Editing by Kevin Drawbaugh, Howard Goller and Tiffany Wu)
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