March 26, 2014. Remember this date. It is the day one of the most powerful and profitable “non-profits” in the nation, the NCAA, began its long march to extinction. It is the day that “student-athletes,” a cleverly crafted classification intentionally created by lawyers to sneak past labor laws, were recognized as employees entitled to unionize and collectively bargain. On this day, the National Labor Relations Board stood up to the money-making machine that is college football and deemed Northwestern University football players as employees based on the findings of NLRB regional director Peter Sung Ohr (full text after the jump).
Today is also bizarre. As much as the glaring inequality of all the revenue generated by athletes bypassing the actual athletes to line coaches’ and administrators’ pockets, do we really want the NCAA to die? In the next few years will major college athletics cease to exist as we know it? Will March no longer be mad? Will I need to find a hobby to occupy Saturdays in the Fall?
In full disclosure, I am a Northwestern graduate. I bleed purple. I have spent a silly amount of money on football tickets, apparel, and a cable package with 300 hundred channels I’ll never watch just to get the Big Ten Network. And as much as I hate watching the Wildcats inevitably choke away a fourth quarter lead each week, it somehow makes me feel connected to my alma mater. I don’t want to lose that.
Yet, I know that my classmates who played on the football team were not just ordinary students. They spent way more than 40 hours per week on football. They had expectations and pressure piled on them that I never, and likely will never, experience.
However, they also had scholarships worth $60,000 per year and I will likely never fully pay off my student loans. Yet that right there is the inherent flaw in the NCAA’s and Northwestern’s argument. These athletes are being paid to play football. Whether they are being paid enough is another conversation. So the situation is a football player, under the control of the coaches and university, working full-time in exchange for a $60,000 per year scholarship. That certainly seems to the fit the bill of an employee. As NLRB regional director Ohr found:
Section 2(3) of the National Labor Relations Act provides in relevant part that the “term ‘employee’ shall include any employee . . . ” The U.S. Supreme Court has held that in applying this broad definition of “employee” it is necessary to consider the common law definition of “employee.” NLRB v. Town & Country Electric, 516 U.S. 85, 94 (1995). Under the common law definition, an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment. Brown University, 342 NLRB 483, 490, fn. 27 (2004) (citing NLRB v. Town & Country Electric, 516 U.S. at 94). As the record demonstrates, players receiving scholarships to perform football-related services for the Employer under a contract for hire in return for compensation are subject to the Employer’s control and are therefore employees within the meaning of the Act.
The ramifications for this momentous ruling are nearly endless. Will players elect to form a union? How will the collectively bargaining process proceed? What about Title IX compliance? Will the Supreme Court hear the appeal?
Ultimately, no matter what comes from this historic day and no matter what side of the debate you are on, you have to hand it to Kain Colter for taking a stand and fighting. Isn’t that what we want colleges to teach our students? He believed in the right to unionize, stuck his neck out, and stood up for a cause bigger than himself. I had the joy of watching him make many plays on the gridiron, but this is by far his best play yet.