Labor Day: College football unions ahead?

NLRB ruled six years ago that college athletes are not entitled to unionize

By Marshall H. Tanick
BridgeTower Media Newswires
 
“Football is not a contact sport. Dancing is a contact sport; football is a collision sport.”
— Former Michigan State
college football coach
Duffy Daugherty

As the University of Minnesota football team prepares to kick off Labor Day weekend by hosting the highly rated Ohio State Buckeyes Thursday night, the eyes of a national television audience and other college football followers will be focused on the game at the newly christened but controversial Huntington Bank Stadium on the U’s campus.

Incidentally, it’s the second consecutive year that the Gophers’ inaugural game will be in national TV. Last year, the team started the COVID-delayed season in the last week of October with a 49-24 thrashing by Michigan at an empty home stadium, then known as TCF Bank Stadium before the financial institution’s absorption by the Huntington.

But this year, the stands will be filled and the Gopher hopes will be running high. A week later, Coach P. J. Fleck’s squad will host a game against another, lesser team from the same state, Miami of Ohio.

Meanwhile, the dynamics and structure of big-time college football and other sports may be facing alternatives as a result of two high-profile court rulings in the past three months.

One of them is the decision by the U.S. Supreme Court allowing student athletes at colleges and universities to receive upgraded education-related benefits, beyond those currently limited by their governing body, the National Collegiate Athletic Association (NCAA), could herald those changes in college athletics. It opens the door for college athletes to receive compensation from outside sources for endorsements, testimonials, and the like, a matter not expressly addressed by the Court in its ruling in NCAA v. Alston, 141 S.Ct. 2141 (June 21, 2021) but clearly looming now that at least a half dozen states have adopted laws to that effect and the NCAA has dropped its long-standing prohibitions against that arrangement.

Indeed, the first college athlete, actually athlete-to-be who has stepped through that aperture is a Minnesotan no less. Within 10 days of the high court ruling, the initial deal was entered into by Hercy Miller, a former basketball star at Minnehaha Academy High School, who graduated from there this year. The son of music rapper Master P, the ex-Redhawk guard signed a $2 million endorsement deal with Web Apps America prior to playing a single game for Tennessee State University, where he is now enrolling.

Other bigger name players are likely to follow—and surpass—that sum soon.

The NCAA reported accruing $34.8 million in legal fees for the Alston case, which shows that Supreme Court litigation can be rather costly. That’s about as much as some superstar college football and basketball players are poised to make in light of the outcome of the case and related loosening or removal of endorsement restrictions.

But there is another less visible change looming, perhaps of even greater significance, and it stems from a litigation matter right here in Minnesota. Three weeks before the Supreme Court decision, the Eighth Circuit Court of Appeals, the Federal court that oversees federal litigation in Minnesota and six surrounding states, reversed a lower court ruling by the Federal District Court in Minnesota, dismissing a lawsuit brought by ten Black University of Minnesota football players, claiming discrimination on how they were treated in connection with a section investigation and discipline for a sexual encounter that occurred on campus during the football season five years ago.

The decision in Does 1-2 v. Regents of University of Minnesota, 999 F.3d 571 (8th Cir. June 1, 2021) permitted the Gopher players to proceed with a lawsuit, claiming gender discrimination on the part of the university, in how they were treated following a consensual sexual escapade with a university cheerleader.

While the original lawsuit — claiming a variety of transgressions — was pared down in the decision written by Judge James Loken, of Minnesota, it nonetheless could provide a vehicle for compensation for the affected students and, perhaps, a change in how internal investigations are conducted at the univeristy and other educational institutions as well.

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Union undertaking

But beyond the particulars of that case, the ruling in the U of M litigation may revive an issue that seemed to have been laid to rest a few years ago: the undertaking of unions comprising big-time college athletes. That development may have much broader impact for college athletics and athletes, in particular, than the Supreme Court’s decision in the Alston case, which will largely be confined to high profile athletes in the two largest revenue raising sports, football and basketball, at a few big-time schools in big-time programs, bypassing the vast majority of students who participate in athletics at much lower, less visible levels.

The possibility of unionizing, however, has much broader implications. If unionization transpires, it will owe much to another occurrence here in Minnesota: the boycott by University of Minnesota football team in response to the investigation and suspension of their teammates in 2016 that formed the basis for the recent Eighth Circuit litigation.

In reaction to the disciplinary action taken against their teammates, the squad refused to participate in the upcoming end-of-year Holiday Bowl game in San Diego. Players were trying to withhold their services in a strategic lever to demand reinstatement of suspended players, along with apologies and resignations of athletic director, Mark Coyle, who imposed the suspensions, and then-University President Eric Kaler, who supported it.

After three days the boycott ended, and the players returned to practice to prepare for the game against Washington State, grudgingly bowing to the reality that, as one player put it, their “demands are not going to happen.” The hiatus in practice ended and the team went forward to play in the game, defeating Washington State 17-12, which turned out to be the final game for Coach Tracy Claeys, who was replaced after that by the energetic P.J. Fleck, who has been at the helm of the “row the boat” mantra for the team since then.

The impromptu audible call by the players may not have been necessary and the ensuing chaos could have been averted or minimized had other means of recourse been available to the players at the time. One avenue of relief could have been a labor union representing the interests of the players. If a union had existed, university officials would not have been able to take such precipitous action.

Instead, they would have had to grant certain rights to the accused players, including allowing them to have “Weingarten” representation legal counsel or other assistance during any investigative interviews under NLRB v J. Weingarten, 420 U.S. 251 (1975) as well as  giving them a pre-disciplinary hearing, known as a Loudermill procedure, pursuant to Cleveland Board of Education v Loudermill, 470 U. S. 532 (1975) allowing them to state their cases against discipline, which might have alerted the authorities to their excessive over-reaction. Even if discipline had been imposed, the players could have pursued a multi-step dispute appeal process, culminating in arbitration proceeding before a neutral decision maker.

But, without a union, they had none of these rights and were subject to the arbitrary and unilateral decisions of university officials, which resulted in the contentious, costly and potentially calamitous court case.

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Labor looming

Alas, from the players’ standpoint, there was no union at the time.

But, with Labor Day looming a few days after the opening game against the vaunted Buckeyes, unionization for college athletes could be on the horizon, perhaps spurred by the High Court’s NCAA ruling, although many obstacles stand in the way of that occurring. The impediments to effecting unionization rights for college athletes begins with the National Labor Relations Board (NLRB), the federal agency that oversees management — labor relations in the private sector.

Six years ago this month, it ruled that college athletes are not entitled to unionize. In re Northwestern University, 13-RC-21359 (Aug. 17, 2015). That decision came after a high profile action by players at Northwestern University, the only private school in the Big 10, aiming to form a union. An overwhelming majority of the team members indicated a desire to unionize, and a proceeding to authorize a formal vote on unionization was accepted by the agency’s office in Chicago.

News reports at the time, and subsequently, misleadingly indicated that unionization was a done deal and would be the model for labor organizations and other big-time college athletic factors. But it was not to be.

The NLRB in Washington, D.C., which includes a mixture of Democrat and Republican appointees, unanimously ruled that the athletes could not form a union. The decision was somewhat surprising because many observers figured that the body, which was Democratic dominated at the time, would side with the interests of labor, particularly because of the importance that unions attach to the issues and means of expanding their voting influence. But the board rejected the argument that the players should be viewed as employees due to the consideration they received — scholarships, small stipends, etc., — to ply their skills, and raise tons of money for their respective institutions. It reasoned, as Northwestern management and its allies throughout college athletics argued, that the players were “just students,” who were not subject to federal labor laws and the protection they afford to those who are deemed to be “workers.”

The decision dealt a potentially fatal setback to the incipient college athletic unionization movement. But the NLRB has a long practice of reversing itself upon change in administration or the ideological outlook of its appointees, the majority of whom are customarily members of the party occupying the White House. The Board, under President Biden, has taken many actions supporting or facilitating the labor union organization. That impetus could be scoured by the Alston decision, although it did not address the issue of unionization at all, the most notable portion of the decision was a concurring opinion by Justice Brett Kavanaugh, whose striking language may pave the way for unionization of college athletics.

Kavanaugh’s concurrence, which deservedly received much more attention than the bland majority opinion authored by Justice Neil Gorsuch, expressly addressed whether college athletes can, or should be entitled to monetary compensation beyond educational-benefits bestowed by their schools. Nor did it speak to the issue of compensation of college athletes.

But both may be lurking in the lacunae of the court’s ruling, prodded by the Kavanaugh concurrence.

Justice Kavanaugh lamented that no other “American business get away with agreeing not to pay their workers a fair market rate.” He went on to refer to the NCAA’s limitation on benefits to athletes as an illegal form of “price fixing labor,” which deprives athletes of “fair compensation for their work.”

Kavanaugh’s language, sounding like it comes from the AFL-CIO handbook, could form the playbook for monetization of college athletes.

In effect, the opinion, which is sure to be cited in the future, treats college athletes as “workers,” or employees, which undercuts the precise basis that the NLRB relied on five years ago in ruling that they could not unionize because they were not employees or “workers” at schools.

It is not too far from that reasoning to determine that college athletes do, indeed, “work” for the schools and, therefore, are entitled to protection under Federal labor laws or, for those who attend public schools, that are outside the purview of Federal labor laws, applicable state laws, like the Public Employees Labor Relations Act (PELRA) in Minnesota, Minn. Stat. 179A.01, et. seq.

The players would not be the only winners if they are allowed to unionize. The absence of labor unions hurts the institutions, too. Without restraints imposed by unions, college administrators are susceptible to the kind of erratic decision-making that plunged the U into such perilous litigation that could end up costing the school — and the tax payers — substantial amounts of money, in addition to the hit to its prestige and recruiting opportunities.

The coalescence of these recent cases — the Marxist rhetoric in the Supreme Court decision and the ruling favoring the U of M football players — may warrant re-visiting the issue of unionization of college athletics, at least those in big time sports activities.