NLRB Ruling that Northwestern Football Players Can Unionize Is Not a Big Deal – Yet

by Kent Sterling

Northwestern quarterback Kain Colter reads employment law statutes with the same excellence as he read Big Ten defenses.

Northwestern quarterback Kain Colter reads employment law statutes with the same excellence as he read Big Ten defenses.

The knee-jerk reaction to the ruling by the National Labor Relations Board that Northwestern’s football players may vote to join a union that will have the authority to collectively bargain with the university for benefits is that it paves the way for all college athletes to be classified as employees.

Not so much.

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Before anything can happen at Northwestern, the university will appeal, and while it is unlikely the ruling will be amended or overturned in favor of Northwestern, the delay will provide plenty of time for the sea change that the Ed O’Bannon lawsuit for the rights of collegiate athletes to retain ownership of their images might cause.  In fact, there are so many lawsuits and ideas being crafted into legislation that this is a tremor compared to the potential earthquakes that appear imminent.

The landscape of college sports will shift drastically over the next decade because of the smart and brave actions being taken by former Northwestern quarterback Kain Colter in this case, O’Bannon, and others like them who see the inequity of the current system.

The first piece of good news for university athletic departments is that only private universities like Northwestern are subject to NLRB rulings, so the rest of the Big Ten is unaffected by whatever changes are prompted by the resolution of the Northwestern ruling.  The second piece of good news is that the Northwestern football players seeking union representation are interested in benefits like continued health insurance for athletic injuries, and not pay for play.

The bad news is that public and legal opinion has swayed from solidly behind the ideals that have allowed college athletics to operate without paying what the NCAA has long referred to as student-athletes since the 1950s.  It bears mention that the term ‘student-athlete’ was concocted by then NCAA chief Walter Byers in response to a lawsuit in the 1950s as a dodge to avoid exactly the kind of litigation being pursued every month or two by collectives of athletes seeking a measure of fairness in the governance of collegiate athletics.

The tide is shifting toward understanding that coaches get rich, the media gets rich, administrators get rich.  Players get a scholarship.  Is the scholarship a nice perk?  Of course.  Who would rather pay for college than not?  In some families, athletics opens a financial path to college that could never have existed otherwise.  For others, the primary benefit goes to the parent(s) who are able to pocket the cash they would have spent to send the kid to school.

Forget the claptrap about amateurs thrilled by playing for the love of the game – they don’t exist.  Forget about coaches who are invested in kids getting their degrees as the primary purpose of a football or basketball program – until a coach with a losing record is retained and rewarded for the quality of the graduates he produces, none last long in this meat grinder of a business.

Don’t be distracted by the talk of $200,000 as the value of the scholarship.  The cost of tuition for an athlete is a pass through expense – and out of state tuition is an up charge.

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Focus on the simple economic dynamics at work.  Value is being generated – lots and lots of value by athletes toiling for the profit, marketing, and glory of their schools – and in a capitalistic society, value is rewarded.  That’s as complex as it needs to be.

If collegiate athletics are first about education, why are coaches paid as much as $7-million per year?  Until there are professors paid to that level, something is amiss.

This isn’t about athletes saying thank you for a scholarship because their lives are better for receiving one.  It’s about athletes who are also students being able to own their likenesses, and sit at the table as an equal when the subject of their health care is discussed.

Power follows value.  That is an impossible to refute axiomatic principle.  Unique skills provide value and value brings power.  Nowhere are unique skills more obviously evaluated than in athletic endeavors.  In many businesses, a 45-year old can host meaningless meetings, write insipid and redundant memos, and head to the bar around the corner at 4:45p.  Athletes are immediately exposed in front of thousands in the stadium or arena, and millions on TV.  Regardless of whether they excel or suck, they are paid nothing but a trip to class and a plate of meatless moussaka.

The opinion of the NLRB is that Northwestern requires athletes to behave as employees, so they should be classified as employees.  Hard to refute that, or the shift in the bedrock of college football and basketball.

7 thoughts on “NLRB Ruling that Northwestern Football Players Can Unionize Is Not a Big Deal – Yet

  1. Steve Koers

    As a lawyer, I can tell you that this will not be over for years. People seem to take it for granted that the NLRB will automatically uphold this. That would be a mistake, just as assuming the Regional Director was going to side with NU. These are hard to predict, but it is true that the players now have a bit of an upper hand. The NLRB will make their own ruling and the losing side will file a Federal lawsuit. This will last awhile.

    As a Northwestern grad, I kind of hope we embrace it, start recruiting to it and grab kids who are looking for these advantages that no one else can provide. That would really upend the whole NCAA structure! Everyone else would go crazy trying to find ways to compete against the only school with built in legal advantages. An alum can dream, right?

    1. kentsterling Post author

      That’s a great point. This could work out for NW in ways that aren’t available for the state run schools over whom the NLRB holds no sway.

      My opinion that the ruling will not be overturned is reflects not an understanding of the law or process, but a trust in the opinion of ESPN legal analyst Lester Munson, who is relentlessly accurate is his analysis of such matters. I’ve been a fan of Lester’s for more than 20 years, and can’t recall him swinging and missing.

  2. Steve Koers

    Munson is generally pretty spot on with his opinions. NLRB is a tricky thing though. Heck, NU’s lead attorney in this matter was a former Regional Director of the NLRB in Chicago. To borrow a line I read, the decision reads like the Regional Director has never watched football before and was being taken up to speed by the parties…which can be a good thing. It just shows that differing directors at the NLRB all have different notions. Either way, it is going to be interesting to watch.

    1. kentsterling Post author

      Thanks for lending your expertise to the conversation. Whatever the final outcome, it’s going to come years from now.

  3. David Spellman

    THE key point is that there is a dog that didn’t bark: the state schools. NLRB jurisdiction is ONLY over private schools. State schools are governed by state law. In Indiana, there cannot be unionization (absent the General Assembly amending the law, which I cannot see) because there is no jurisdiction whatsoever over players or anyone else who is not a public school teacher. I am the former General Counsel (Daniels Administration) of the state labor board, IEERB (Indiana Education Employment Relations Board).

    1. Pauly Balst

      I think the NCAA as we know it is toast.

      David Spellman, from your perspective, there must be at least one scenario or series of events that lead to football and basketball players at FBS schools getting paid.

      Care to paint us a picture of how this might occur, given your background?

  4. David Spellman

    I believe that the NLRB will uphold the ruling…best shot at having it overturned is with the U.S. Court of Appeals for the 7th Circuit in Chicago. That often is a very pro-employer Court with well-known Judges such as Posner and Easterbrook (brother of the ESPN TMQB writer). I think that Munson’s prediction will prevail at the administrative level. FYI, I have practiced labor and employment law for 34 years (but mostly in NY and FL).


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