In a stunning ruling out of the Chicago office of the National Labor Relations Board (NLRB), a group of Northwestern University football players were deemed employees and given the right to form a union and have collective bargaining rights. The decision is reminiscent of the aftermath of former St. Louis Cardinal Curt Flood’s challenge to baseball’s reserve clause in the 1960s that eventually led to free agency and expanded rights for Major League Baseball players. Northwestern University has indicated it will appeal the ruling.
The ruling turns upside down the traditional role of student-athlete and gives energy to the movement to compensate college athletes. For some time now there has been a growing and vocal contingent of sports enthusiasts calling for colleges to pay athletes and provide them with employee protections. Many critics have claimed that the governing body of college athletics, the National Collegiate Athletic Association (NCAA) and its member colleges, have exploited students for profit, leaving athletes vulnerable to the whims of their institutions. Sensing the growing controversy the NCAA in recent years has made a point of highlighting students as “scholar-athletes” to send the message that athletes are students first. It has become an increasingly tough sell for the NCAA, itself a not-for-profit organization, with a lucrative billion dollar television deal and colleges that profit from merchandising tied to its students.
Recently during an appearance on CNN’s Crossfire basketball legend Kareem Abdul Jabbar lent his voice in favor of paying college athletes. The NBA Hall of Famer said, “Football and basketball are on national TV. They generate money for all of these national sponsors and advertisers. It's incredible how much money is being made. The president of the NCAA makes $1.7 million a year, yet the people who are performing and generating this cash do not get to participate in any way.”
In the ruling, Peter Ohr, regional N.L.R.B. director declared, “As has already been alluded to, the Employer’s players (both scholarship and walk-ons) are subject to certain team and athletic department rules set forth, inter alia, in the Team Handbook that is applicable solely to the Employer’s players and Northwestern’s Athletic Department Handbook. Northwestern’s regular student population is not subject to these rules and policies.” Throughout the ruling Ohr sets out to differentiate the status of the Northwestern athletes from the rest of the student population on campus.
Though the ruling only applies to football players on scholarship at Northwestern University, the implications are far-reaching; particularly for Division I and Division II football players at other private universities. Since collective bargaining at state controlled colleges falls under the purview of state law and not the National Labor Relations Board, how deep the ruling touches in college sports is still anyone’s guess. What is apparent is that an important threshold has been crossed with the determination that the football players at Northwestern are employees and must be treated as such and provided the legal protections of employees. Though the NCAA was not a party to the complaint it had an immediate reaction to the ruling by the N.L.R.B. The chief legal officer for the NCAA, Donald Remy, released a statement that said in part, “Over the last three years, our member colleges and universities have worked to re-evaluate the current rules. While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college. We want student-athletes – 99 percent of whom will never make it to the professional leagues – focused on what matters most – finding success in the classroom, on the field and in life.”
It was the petition filed by a new group, the College Athletes Players Association, on behalf of Northwestern University football players that brought the issue of athletes and their legal status to the forefront. The new group petitioned the N.L.R.B. in January and then endured a contentious three week hearing before the agency last month.
The ruling will likely be contested all the way to the United States Supreme Court but in the interim there will be a lot of discussion about its impact and influence. The ruling creates a potential fissure in the ranks of college athletics as well. Larger schools with revenue generating football programs, such as the University of Michigan, University of Southern California and Northwestern, might be able to cover the spread, pay athletes and provide benefits without ‘losing’ much in return. Smaller institutions and private historically Black colleges are likely very concerned about the possible effect on their budgets. The same goes for Ivy League and NCAA Division 3 schools that do not offer athletic scholarships but support based upon academic performance. While scholarships, for the most part, are paper transactions, wages are not. In this period of economic uncertainty institutions are making decisions based on the bottom line so rather than meet additional payroll costs colleges could conceivably discontinue athletic teams.
Another significant factor is Title IX and questions of gender equity in pay. Football programs generate the greatest share of revenue at most colleges but questions will be raised about pay equity between women and men. It is inconceivable that if this ruling withstands court scrutiny that colleges would be allowed to pay women athletes less than their male counterparts, regardless of the sport.