Under Analysis: College upsets may reshape the game as we know it

 Charles Kramer, The Levison Group

The NCAA College Basketball tournament takes over law firms and other businesses across the country as everyone scrambles to fill out their “brackets” and predict the final four and ultimate basketball champion. This year, 2014, has seen many bracket soothsayers crying in their spilled milk, as underdogs continue to unseat favorites, wreaking havoc. However the biggest upset in college sports did not occur on the Court, but rather in the Courts, and did not feature the likes of Wisconsin University or noble hoopsters, but rather Northwestern Univeristy and football players.

Beginning back in January, quarterback Kal Coleter and a group of Northwestern football players began a contest that recently lead to an upset of sorts. The group filed a petition with the Chicago office of the National Labor Relations Board to form the College Athletes Players Association (CAPA) — a UNION! The effort was backed by the United Steelworkers and seeks to unionoize college athletes to give them an “equal voice when it comes to their physical, academic and financial protections,.” The group identified 11 goals, ranging from reducing brain injuries to increasing graduation rates to creating guaranteed scholarships that would enable athletes to complete their education even if they are injured or get cut from their teams.

A scant three months later, while the NCAA basketball tournament dominated the news, the Regional Director of the National Labor Rlations Board issued a ruling, finding that Northwestern University football players who receive grants-in-aid scholarships from the school linking their grants to their participation in university athletics are “employees” within the meaning of federal labor law and are entitled to unionize. The Board directed that a secret ballot election be held to determine whether the players wished to be represented by CAPA for purposes of collective bargaining with the university.

The ruling did not open the floodgates to unionization of all athletes. As a primary matter, it only applies to private schools, not public schools. Although there may or may not be material differences between the two educational systems, the ruling specifically addressed the question in the cntext of private universities. Second, Northwestern has already indicated an intent to appeal the decision to the full National Labors Relations Board in Washington, DC, as is its right. 

With respect to the appeal, the Chicago Regional Director may have done the players no real favor. Although ruling in favor of the petitioners, the Director noted that a prior case involveing Brown University graduate assistants appeared initially to indicate a contrary result. The Director distinguished the case by focusing on elements such as the degree of control coaches and the university have over the lives and worth of their players, the link of scholarships to sport participation, and the requirement of regular “work hours.” In so doing, the Director outlined the areas in which colleges could alter their approaches to move away from the “employee” finding and move back towards the “student” classification for athletes. If students were awarded scholarships based on athleticism, but then guaranteed the full four years regardless of whether they played or not, would the face of athletics change? If Coaches were not allowed to act like “bosses” with respect to their student athletes, imposing required workouts, curfews, requiring grade reporting, and morality clauses, could they produce the same quality of sport needed to generate the big dollar revenues? If workouts became voluntary events, rather than mandatory work shifts, would players show up?

Although it is arguable that, at least with respect to big time programs where student athletes have their eyes on the professional leagues, things may not change that much, one thing is clear. If the finding that athletes meet the federal labor definition of “employee” is upheld and the schools don’t change their ways to change that result, there will soon be players getting paid to play, controlling their own endorsements, and deciding when they can or cannot turn pro. If so, something tells me that Arizona is not going to be the only college upset.


Under Analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St. Louis, Missouri law firm Riezman Berger PC. Comments or criticisms about this column may be sent to the Levison Group c/o this newspaper or to the Levison Group at comments@levisongroup.com.

© 2014 Under Analysis L.L.C.


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