Submitted by Jake New on October 15, 2015 - 3:00am
Critics say NCAA decision to allow football player to auction off his jersey for charity points to arbitrary nature of the association's stance on players making money from their own "name and likeness."
In a rare unanimous opinion in August, the National Labor Relations Board overturned its Chicago regional director’s controversial decision that Northwestern University football players are employees -- and therefore are entitled to unionize and to bargain over the terms and conditions of their employment. But the NLRB ruling avoided the case’s substantive issues, resting instead on a discretionary refusal to exercise jurisdiction.
For the Northwestern football players who brought the case, the issue is over. There is no right of appeal from the NLRB’s ruling. The impounded union election ballots that the 76 eligible players cast were never counted, and they now will be destroyed with no one knowing the outcome.
Yet we would argue that the real and continuing importance of this case lies in what it has contributed to the long overdue, and now increasingly intense, national conversation about the treatment of athletes in college sports -- especially how athletes can influence the rules that control their competitive and academic lives and the level of financial aid and other benefits they receive.
The College Athletes Players Association (led by former athletes, including a Northwestern football player) and other union advocates argue that the door is still open to reform college sports through unionization, a means that most in the college athletics establishment disfavor. The NLRB ruling painstakingly repeats (seven times) that the board reached no decision whether college football players ever might be allowed to unionize.
Yet the rationale for the NLRB’s decision not to rule -- that team sports require common rules with leaguewide applicability, but the vast majority of colleges and universities with major football and other sports programs are public institutions not covered by the National Labor Relations Act -- makes it hard to envision that the NLRB would reconsider this issue anytime soon.
The board’s refusal to decide the merits averted what undoubtedly would have been an abrupt and enormous transformation of college sports. Athletic and other leaders at Northwestern University, the University of Notre Dame and Stanford University already had hinted at withdrawing from big-time athletics had their players been allowed to organize as employees. But the decision still leaves open at least two major and related issues at the center of current discussions of college sports reform:
How to give college players a direct voice in determining how they are treated. The National Collegiate Athletic Association’s member colleges and universities develop both institutional and national policies that govern what they think is the right experience for their athletes. But as former athlete Ramogi Huma, president of the College Athletes Players Association, observed, “How do they know? They haven’t asked the players.” If not through unionization, then some other regularized means must be developed, besides litigation, whereby college athletes can participate directly in the conversation about the rules that apply to their sports.
The existing campus model would be something akin to academic and staff councils, created to give official voice through elected representation to the concerns of constituents, and allow for formal recommendations to be made to the governance structure on their behalf. Some argue that this type of input is not enough.
In January, the NCAA began experimenting with actual student seats with full voting rights on bodies that determine policy. How well that will work and whether it will be considered enough remains to be seen. The College Athletes Players Association will not likely be satisfied with anything less than fully equal representation.
How to fairly shape the college athlete’s total experience. We emphasized “besides litigation” above because what we see as the second major issue -- how to allocate the skyrocketing revenue that players help produce in big-time college athletics and determine what players’ educational, health and financial aid experiences should be at all NCAA levels -- has already found its way into the courts in multiple ways. It is now a race to see if voluntary reforms can outpace litigated results.
In 2014, a California federal judge ruled in a class action brought by former UCLA basketball player Ed O’Bannon that NCAA regulations limiting players’ commercial rights to their own names and likenesses violated antitrust laws. The Ninth Circuit recently issued a stay on that decision until the full appeal can be heard. In the meantime, the Pac-12 conference proposed that the NCAA vote in January on a proposal that would allow athletes to use their names, images and likenesses to promote their own nonathletic business ventures. Two other antitrust claims addressing NCAA rules limiting athletic “grants in aid” are also making their way through the courts. The NLRB ruling cited the beginning of some scholarship reform within the NCAA as additional support for declining jurisdiction in the unionization fight.
The stakes are not small -- for athletes or their institutions. Northwestern’s program generated $30 million in the 2012-13 academic year from ticket sales, broadcast contracts, stadium rights and merchandise sales (not including football-inspired donations from alumni and others). And those numbers are at the lower end for institutions in the five most powerful football conferences or other conferences in the Football Bowl Subdivision, all of whose revenues will continue to increase from their unprecedented long-term media rights contracts.
As those revenues have grown, colleges and universities have made ever greater demands on their athletes for more effort -- sometimes up to 40 or 50 hours per week in addition to their studies. And, in response, athletes are increasingly questioning whether athletic obligations are impeding their academic opportunities.
The Northwestern players had the chance to graduate debt-free -- an opportunity that many of their fellow students would envy. They were awarded scholarships estimated at $61,000 per year, covering their tuition, fees, books, and room and board -- but limited by the NCAA rules until recently to these items alone. For the first time this year NCAA rules permit athletic scholarships to cover the higher “full cost of attendance” at an institution, which is the value of a full need-based or academic scholarship.
In these circumstances it is not surprising that the NLRB regional director questioned the contention of NCAA and college and university officials that Northwestern football players are really students and not employees.
What may surprise is that the Northwestern athletes who brought the unionization petition did not ask for the opportunity to bargain for additional compensation or direct funding -- even though athletes throughout Division I have watched their institution’s additional revenues handsomely enhance coaches’ salaries, create new staff positions and support significant overhead across athletic departments. Rather, the Northwestern athletes sought an expansion of other benefits and protections related to the traditional view that college sports are as part of the athletes’ educational experiences (and consistent with their institutions’ tax-exempt purposes). They called for enhanced academic support, broader medical coverage for all sport-related injuries before and after graduation, measures to minimize and compensate for traumatic injuries, and guaranteed four-year scholarships to protect against involuntary ineligibility.
This concern with their overall college experience, and how it affects preparation for their future lives, resonates with athletes throughout the NCAA membership, not just those at the high-revenue institutions. But, to concerned athletes, the only avenues to pursue these issues seem to have been to ask to be declared employees -- rather than students competing as athletes -- or to bring other adversarial lawsuits under laws designed to regulate commercial economic activity. Whatever one thinks of collective bargaining as a process, that avenue now appears closed. But these issues will not soon go away.
The colleges and universities that make up the NCAA have little time to come to terms with the twin challenges we’ve raised; the search for meaningful solutions to the right treatment of athletes is now part of the terrain of college sports. And unless the college sports establishment can find the correct balance quickly, and provide athletes with a meaningful and continuing voice, these issues will most likely be decided outside of the academy -- with the potential to totally and suddenly upend the world of college sports in ways that may not well suit the college and university environment.
Christine Helwick is former general counsel for the California State University system and now advises college and university clients at Hirschfeld Kraemer. Jeffrey Orleans is former executive director of the Ivy League, which competes in the NCAA’s Division I, and now advises college and university clients at Hirschfeld Kraemer.