When Northwestern quarterback Kain Colter announced that he and his teammates were seeking to unionize, it came as a huge surprise. No matter where and when it happened, it would have been big news—but it was also almost inevitable that it would happen somewhere, at some point, because there's actually a long, rich, and fascinating history of student-athletes and labor law, because the concept of the "student-athlete" is inseparable from labor, as Taylor Branch has written:
The term is meant to conjure the nobility of amateurism, and the precedence of scholarship over athletic endeavor. But the origins of the “student-athlete” lie not in a disinterested ideal but in a sophistic formulation designed, as the sports economist Andrew Zimbalist has written, to help the NCAA in its “fight against workmen’s compensation insurance claims for injured football players.”
The term student-athlete was deliberately ambiguous. College players were not students at play (which might understate their athletic obligations), nor were they just athletes in college (which might imply they were professionals). That they were high-performance athletes meant they could be forgiven for not meeting the academic standards of their peers; that they were students meant they did not have to be compensated, ever, for anything more than the cost of their studies. Student-athlete became the NCAA’s signature term, repeated constantly in and out of courtrooms.
Using the “student-athlete” defense, colleges have compiled a string of victories in liability cases.
Judicial precedent is unfriendly towards NCAA in the context of labor law, as Branch and many others have detailed, such as former Notre Dame football player Allen Sack (who played on Ara Parseghian's 1966 national championship-winning team).
But this shouldn't be mistaken for the expectation that Northwestern's football players are underdogs in their attempt to unionize. Instead, it explains a great deal about why they're trying to unionize under the auspices of the National Labor Relations Board. They could just strike; individual players could attempt to negotiate their own terms. There are specific, strategic reasons to do so. The NLRB has its own case history to refer to, which is relevant to the players' initiative, and arguably much friendlier to their cause.
To get a sense of which way the playing field tilts at the NLRB, I spoke to Sean Morales-Doyle and Michael Persoon, lawyers at Despres, Schwartz, & Geoghegan, the labor-focused firm bearing the name of late, legendary founder Leon Despres and currently managed by labor lawyer and author Thomas Geoghegan. And as the case began on Wednesday at the NLRB, it's started to roll out along the framework they outlined.
For instance, a dispatch from the first day:
Alex Barbour, an attorney representing Northwestern, said athletes are students, not employees. At the heart of his argument was an 2004 case in which the NLRB ruled that graduate students seeking to unionize at Brown University were not employees. The NLRB said then that graduate assistants are primarily students and have a primarily educational, not economic, relationship with the university.
As you're probably aware, graduate students usually teach and or otherwise do academic work, and are compensated for it, sometimes very little, so many have organized. With the exception of New York University, all these are public schools, because the NLRB deals with private, not public labor. (This means that, if Illini players wanted to unionize, the Northwestern unionization is only relevant insofar as the precedent could influence the state education-labor board.) And NYU's graduate students are only unionized because the school voluntarily permitted it.
There's a logic to the Brown University decision. The work that graduate students do is intended to further the education of those students in their specific fields—teaching students, designing syllabi, and doing research in their specific fields are meant to further their knowledge of that field and prepare them for jobs in that field.
"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."
That's important: completely related. Their work is part of their curriculum, it's part of the university pedagogy, and it's part of the university's primary goal of generating research in the pursuit of knowledge. And it's a requirement of the degree program.
Graduate students unquestionably do work for compensation. But that was enough for the NLRB to carve out an exception to the employer/employee, or master/servant, test. That's the exception that Northwestern University is trying to exploit.
But Morales-Doyle sees the Brown case as a potentially weak limb to hang the university's defense on.
"Unlike graduate students, the people who are directing the terms of what [athletes] would argue as their employment are not the same people that oversee their education," Morales-Doyle says. "Graduate students are often supervised at work by the very same people who are their professors for purposes of getting their degrees. That's not the case for athletes who are controlled by coaches and athletic directors and people who have nothing to do with the academic side of the university. And the work that they do is not part and parcel with the work they do as students. In fact, you could argue that it gets in the way of the work they do as students. And by no means is it a requirement in order to get any degree at any of these universities that you be a student-athlete. There's not a degree program that I'm aware of at Northwestern that one of the requirements is that you play varsity athletics."
(Sally Jenkins, the Washington Post's veteran sportswriter, has made an interesting what-if case for colleges treating undergraduate athletes more like graduate students, allowing them to major in their chosen sports, and requiring coaches to teach academically legitimate courses—an argument that emphasizes the separability of college athletics and academics.)
Nor is it just a matter of Brown being a potentially vulnerable precedent; there are other related NLRB cases that could strengthen the, like the 1999 case of Boston Medical Center, in which house staff—interns, residents, and fellows—attempted to organize, and were permitted by the NLRB to do so, overruling decades of precedent.
And some of the Boston case could be a foundation for Northwestern's nascent union. The Boston ruling found that the house staff were "compensated for their services" (in football players' cases, scholarship and stipend); that they "receive fringe benefits and other emoluments reflective of employee status" (health care, though it's complicated, plus per diem compensation and more.); and the amount of work they provide, 80 percent of their time "engaged in direct patient care" in the case of the Boston house staff.
It's not a slam-dunk. In the Boston case, house staff receive a taxable salary, noted in the findings, and arguably spend more time at their jobs. The NLRB concluded that they're more like apprentices than students, learning by working rather than vice versa. But it does give CAPA and the Northwestern students an opening to get around the Brown ruling: "that house staff may also be students does not thereby change the evidence of their 'employee' status…. The essential elements of the house staff's relationship with the Hospital obviously define an employer-employee relationship. "
Both Morales-Doyle and Persoon think that the union also has a promising strategy in its selection of a bargaining unit, a high-profile, big-money sport rather than pulling in all the school's varsity. "It's not an amateur enterprise. But the people who perform the labor are amateurs and don't have to be paid," Persoon says. "That tension is what, I think, makes people identify with this movement and think that it makes sense. And that tension doesn't exist to nearly the same extent in other sports and with other athletes, where they may not be generating revenue at all, and in fact may be costing the university money to run a fencing team."
"And they can point to the fact that these athletes tend to do better in school than their non-athlete counterparts. Which I think the NCAA regularly points out, that, I think, on average, scholarship athletes perform better than non-athletes, or some some statistic like that. I don't know exactly what it is. But it doesn't apply when you narrow the field to the athletes that are spending 55 hours a week on their sport and not in the classroom."
The NCAA does indeed point to statistics indicating that Division 1 students fare better as students, and there are stats to challenge that assertion, from the University of South Carolina's College Sports Research Institute:
CSRI reports focused on the two most prominent college sports point out another way in which numbers released by the NCAA are favorably skewed. "They aggregate all athletes together," Southall says, "and the fact of the matter is that when looking at the demographic profile of tennis and golf and lacrosse and soccer, those are much more highly qualified students than most football or men's basketball players."
If the NLRB does rule in the players' favor, however, it could end up being a benefit for the football team, as Persoon points out. Schools with a unionized team could conceivably use it as a competitive advantage when recruiting, picking a particularly promising example for local sports fans:
"Take the example of, let's say, DePaul—had a fairly lackluster 15 years of basketball, right in the middle of prime recruiting territory," Persoon says. "Let's say DePaul, all of a sudden alone out of every basketball program out there, can pay its players. In fact, it's legally obligated to bargain with its players over how much it will pay them. And all of a sudden DePaul can pay Jabari Parker $250,000 to come and play for them. Do you think he's coming to DePaul or Duke?"