This week, Northwestern’s football players, attempting to organize under the College Athletes Players Association, won their first-round hearing at the National Labor Relations Board, the biggest victory in recent weeks that didn’t involve the Dayton Flyers. It’s still early—the case could go all the way to the Supreme Court—but it basically followed the template that was laid out to me by a couple labor lawyers, Michael Persoon and Sean Morales-Doyle, back in February.
It was pretty obvious, going in, that the football players would be found to work full-time equivalent hours (40-50 hours a week for the season) and that they bring in substantial revenues at a healthy profit for the university ($30 million in revenues versus about $22 million in expenses last year), even if that profit does subsidize the school’s non-revenue-generating sports.
What the case came down to, then, was whether football is an educational activity part and parcel with the university’s mission and the educational experience of the student-athletes. And that’s where Northwestern lost the case, at least at this early stage.
Morales-Doyle and Persoon predicted that one prior NLRB ruling would be critical to the case, and they were spot-on. That’s the Brown case, where graduate students at Brown University attempted to form a union:
“The work that graduate students were doing in Brown was completely intertwined with the work that they were doing in their educational programs—their scholarship and their work were completely related, so this was primarily an educational relationship, rather than one of an employer/employee relationship,” Morales-Doyle says. “The work they were doing was not part of a commercial enterprise the university was carrying on, it was part of the academic work that the university does.”
Northwestern led off with Brown. But it didn’t work. The NLRB ruling not only ruled that Brown wasn’t applicable in full, it wasn’t applicable in its constituent parts. The section entitled “Grant-in-Aid Scholarship Football Players’ Athletic Duties do not Constitute a Core Element of Their Educational Degree Requirements":
In this case, it is undisputed that the Employer’s scholarship players do not receive any academic credit for playing football. They are also not required to play football in order to obtain their undergraduate degree, regardless of which major they pursue. The fact that the players undoubtedly learn great life lessons from participating on the football team and take with them important values such as character, dedication, perseverance, and team work, is insufficient to show that their relationship with the Employer is primarily an academic one.
The NCAA regularly maintains that student-athletes are better off as students than their non-athlete peers, which was echoed by testimony from players, and there’s evidence, though disputed, to make that case. And Northwestern’s football players are, on the whole, excellent students—the ruling found that they have a GPA of 3.024, a graduation rate of 97 percent, and the best Academic Progress Rate of any football program in the country.
So it’s significant that the NLRB doesn’t care; it’s a major pillar of the NCAA’s argument and its broader rhetoric. Northwestern made a tough but interesting case because it doesn’t make a mockery of the student-athlete concept; it exemplifies its best possibilities. But that was never a guarantee that it would apply to the specific details of labor law.