College football player ‘union’ ruling could force NCAA changes

story by Michael Tilley
mtilley@thecitywire.com

The University of Arkansas had no detailed comment on a Wednesday (March 26) ruling that football players at Northwestern University could unionize, but some of those watching the issue or have been involved in the system say the ruling could change the relationship between universities and college football players – especially at the Division I level.

Big dollars are at stake. A recent Forbes series on college football estimated that the top 20 most valuable college teams have a value of $85 million a year and generated a combined $1.3 billion of revenue in the most recent year. A September 2013 BusinessWeek article noted that 10 top college football programs saw their combined annual revenue rise from around $300 million in 2000-2001 to more than $759 million by 2010-2011.

Kain Colter, a former quarterback for Northwestern, has been the signal caller for an effort to allow players at the Chicago-based university to unionize and potentially share in the growing revenue pie. His argument is relatively simple: College football is nothing more than a commercial enterprise that garners millions of dollars – if not billions – for many university programs around the country, and the players are essentially the labor for the programs.

Peter Sung Ohr, a regional director with the National Labor Relations Board based in Chicago, agreed with Colter and his attorneys in a 24-page document released Wednesday.

“In sum, based on the entire record in this case, I find that the Employer’s football players who receive scholarships fall squarely within the Act’s broad definition of ‘employee’ when one considers the common law definition of ‘employee,’” Ohr noted.

Also in the ruling, Ohr wrote: “The Employer’s scholarship players stand in stark contrast to those student janitors due to the fact that they: (1) work in excess of well over 40 hours per week during training camp and the football season; (2) work virtually year round and have a much longer employment tenure; and (3) do not have a ‘very tenuous secondary interest’ in their employment. This is clearly established by the undeniable fact that the scholarship players’ interest and skill in playing football are far greater than a ‘very tenuous secondary interest’ but in fact a primary interest. Moreover, but for their football prowess the players would not have been offered a scholarship by the Employer.”

While Colter praised the ruling, his alma mater promised an appeal.

"While we respect the NLRB process and the regional director's opinion, we disagree with it. Northwestern believes strongly that our student-athletes are not employees, but students. Unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes,” noted part of a Northwestern statement.

The ruling applies directly to Northwestern, but has obvious reach for all college athletic programs. Also, the ruling will be subject to a review by the full NLRB in Washington, D.C., and could also face action in the federal court system. Wednesday’s ruling in no way immediately changes the relationship between college athlete and the university.

Because of the lack of immediacy, Kevin Trainor, associate athletic director at the University of Arkansas, declined to elaborate on the ruling.

“As today’s ruling is likely the first of many steps for this issue within the legal system, it would be premature to make any comments on the matter at this time,” he said in a statement to The City Wire.

Matt Ketcham, who played Division III college football and at one time was a certified agent for the National Football League Players Association, is doubtful that Ohr’s ruling will survive intact.

“This may be 10 years in the making. And even if it came out intact at the other end of the wash, it will be decades away before we would see anything close to that (unionization),” said Ketcham, who is an attorney at the Fort Smith-based law firm of Nolan Caddell Reynolds.

Ketcham is not totally sympathetic with the players, but he said the ruling could force the National Collegiate Athletic Association (NCAA) to review the player-university relationship.

“I’m all for the players, but to say it’s reasonable to expect a cut of the profits is crazy. But I do think they need to revamp the system and somehow acknowledge that the college player is not your average student,” Ketcham explained. “This NLRB decision may be the impetus for some type of change that has been talked about for years. Perhaps this and the appeals that will come with it will force the NCAA to change how they treat college athletes.  ... That’s probably what you’ll see come out of this thing.”

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Dennis Dodd, writing for CBS Sports in a Jan. 19, 2014, column, said the effort begun by Colter is not likely to fizzle into nothing.

“If players at Northwestern can get union cards, is it worth the NCAA even existing to negotiate with them? Point being, you know it isn't going to end with Northwestern. Labor laws make it easier for private institutions to unionize right now. Even if the current movement fails, there will be appeals and appeals of appeals,” Dodd wrote. “The movement isn't going to die. This seems like some larger Norma Rae moment. Northwestern quarterback Kain Colter may have been that figure on Tuesday as the movement's de facto leader. But this isn't some Southern textile mill. This is college athletics as we know it. Unionizing attacks the very underpinnings of the entire NCAA enterprise.”

Link here for a PDF of the Ohr ruling.

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