Who gets to unionize?


Under the National Labor Relations Act (NLRA), the federal law that governs private-sector labor relations, "employees" have the right to form a union. They also have the right to be free from retaliation for seeking improvements through "concerted activity"—signing petitions, wearing union buttons, even walking off the job—regardless of whether unionization is the goal.

But who qualifies as an "employee"? The NLRA gives a definition, but unfortunately, it's pretty circular:

The term 'employee' shall include anyemployee, and shall not be limited to the employees of a particular employer, . . . except agricultural laborer[s], . . . domestic serv[ants], . . . independent contractor[s], or . . . supervisors . . . .

So an "employee" is "any employee," minus several specified categories of workers. As you might expect, this has led to significant debate over the scope of "employee" status, including several important cases involving student-workers.


In 1999, the National Labor Relations Board (NLRB)—the five-member administrative agency that oversees the union process under the NLRA—considered whether the interns, residents, and fellows at Boston Medical Center counted as "employees" eligible for unionization. The hospital argued that their staffers were "students" rather than "employees," but the Board rejected this argument, "notwithstanding that a purpose of their being at a hospital may also be, in part, educational." The term "employee," the Board explained, has traditionally meant someone who "works for another in return for financial or other compensation," or a "person in the service of another under any contract of hire . . . where the employer has the . . . right to control and direct the employees in the material details of how the work is to be performed."

The other major student/employee case arose five years later, when the Board received a petition from graduate assistants at Brown University. Overturning an opinion issued in 2000, the Board refused to order an election: the graduate assistants were not "employees" because "the overall relationship between the graduate student assistants and Brown [was] primarily an educational one, rather than an economic one." The Board didn't announce a clear test for determining when someone becomes more "student" than "employee," but key factors included the graduate assistants' "principal time commitments" and the relationship between their labor and their "academic development" as scholars.

So are Northwestern football players "employees"?

That's ultimately a question for the NLRB and the federal courts; I don't have any special insight as to how this will ultimately come out. But the cases discussed above should give you some idea of what the players will be arguing.

Under the traditional common law test discussed in Boston Medical Center, college athletes seem to check all the "employee" boxes. They (1) perform valuable services for universities, just like professional athletes; (2) they are directed and controlled in how their work is to be performed (and in their non-work time, too); and (3) in return, they receive financial or other compensation (scholarships and miscellaneous perks).

It's certainly true that college athletes aren't paid a regular salary—well, they're not supposed to be—but the form of compensation isn't controlling. As law professors Amy and Robert McCormick have pointed out, it was once common for lumberjacks and mineworkers to be paid in company scrip, redeemable only at the company store; nobody would claim that this made lumberjacks and mineworkers anything less than "employees."

The Northwestern players will likely assert that they count as "employees" under the less favorable Brown University approach, too. Whether college athletes are "primarily students" or "primarily athletes" is, of course, debatable. But several of the considerations that cut against graduate assistants in Brown University will work in favor of the players here: the non-academic time commitments that Division I athletics demand are substantial, and the players' labor often is completely at odds with their academic development as students.

What about public universities?

The NLRA only affords rights to workers in private workplaces; state employees are governed by separate rules, which vary state-by-state. To the extent college athletes at public colleges and universities are "employees," they, like all other workers at public universities, would be public employees.

Some states sharply limit public employees' collective bargaining rights—recall the recent battles in Wisconsin—but others have laws that are more favorable to unions, particularly in the university setting. Graduate student unions, for example, are still relatively rare at private universities—the graduate students at NYU just won "voluntarily recognition" of their union, NLRB precedent notwithstanding—but they have been commonplace at large state schools for decades. Labor law in these states has long reflected one of the Northwestern football players' basic contentions: that you can be both a student and an "employee" at the same time.

States where the law seems most favorable to college athletes—California, Florida, Massachusetts, Michigan, Nebraska, Oregon—have some of the biggest basketball and football programs in the country. And on some of these campuses, undergraduate student-workers like residential advisors, tutors, and part-time dining hall workers have already formed unions. When an undergrad with a part-time work-study job as an athletic department clerk qualifies as an "employee" under state law, it becomes a little easier to argue that a classmate whose scholarship obliges him to play before 110,000 paying spectators should, too.

What happens next?

Again, that's anybody's guess. Ordinarily, if 30 percent or more of the potential bargaining unit members indicate they support a union, an NLRB-supervised vote will follow. But first the regional director—before whom the Northwestern players' petition is currently pending—must decide whether the individuals seeking union recognition qualify as "employees." Josh Eidelson at Salon reports that a hearing is scheduled for February 7.

Once the regional director makes a decision, either side can appeal to the NLRB in Washington D.C. Whoever loses there can then appeal in federal court; the losing party gets to choose between the Seventh Circuit Court of Appeals, based in Chicago, and the D.C. Circuit Court of Appeals. And above that, there's just the Supreme Court, should they chose to get involved. The whole process—if it goes that far—could take years.

Would unionization destroy amateurism?

Shortly after news of the Northwestern football team's petition broke, the NCAA's chief legal officer promptly blasted the players' move as "[a] union-backed attempt to turn student-athletes into employees[.]" Unionization, in the NCAA's eyes, is antithetical to the ideal of the "student-athlete," a concept the organization has deftly wielded (as Pulitzer-Prize winner Taylor Branch has explained) to "conjure the nobility of amateurism, and the precedence of scholarship over athletic endeavor."

But it's worth considering what legal obligations union recognition would actually trigger. In a non-union workplace, your employer is free to set the terms and conditions of employment unilaterally, with or without the workers' input; you can take it, leave it, or try to negotiate a better (individual) deal. Once a union is recognized, however, the employer has a legal duty to "meet . . . and confer in good faith" with the employees, through their chosen representatives, to discuss the "terms and conditions of employment." That includes good-faith bargaining over compensation issues—and health insurance, discipline policies, working hours, etc.—but the NLRA doesn't require anyone to come to an agreement. Its main legal effect is to guarantee union members a seat at the table, to formalize a process through which employees can ensure their voice is actually heard.

Collective bargaining might also have a significant ancillary benefit for universities and the NCAA (and the "amateur ideal"): insulation from antitrust law. As Jonathan Mahler pointed out on Wednesday, the ongoing O'Bannon v. NCAA lawsuit has called into question whether the NCAA's business model violates federal prohibitions on "anticompetitive" market behavior. Employers generally aren't allowed to get together and decide to keep their workers' wages artificially low, for example. But where a lawful collective bargaining agreement is in place, special exemptions apply. Ironically, collective bargaining might be the NCAA's best way to guard against the ravages of complete free-market competition (which really would sound the death-knell of the amateur model).