How Would An NCAA Union Actually Work? A Guide For Perplexed Pundits

The real triumph of the decades-long propaganda war against organized labor isn't best seen in the ever-declining rate of unionization, or ever-increasing income inequality, or even the way the word "union" functionally works as an epithet. It's seen, instead, in the fact that so many otherwise smart, thoughtful people don't seem to know what unions actually do.

Take this recent column in the Washington Post on the National Labor Relations Board's ruling in the Northwestern unionization case, in which Sally Jenkins argues that revenue-generating labor undertaken for benefits isn't quite enough to form the basis of an employer-employee relationship. In her argument, a scholarship is a privilege, coaching and medical care are valuable free stuff, and the main significance of the NLRB's ruling is that it raises a lot of unanswerable questions. Are Harvard rowers exploited laborers? How will players form a bargaining unit? Can women demand to be paid like men? What IS the sound of one hand clapping, anyway?

The thing is that these questions have answers, and once you know them, the whole issue becomes a lot less perplexing. This is why we've enlisted the aid of our legal expert on unionization, attorney Thomas Frampton, to answer some basic questions about this whole union thing.

Exactly which college players are employees?

The first set of questions Jenkins has is straightforward enough:

If Kain Colter is an exploited laborer, then is a female tennis player at Stanford an exploited laborer too? Is a lacrosse player at Virginia an exploited laborer? Is a rower at Harvard?

Here, Jenkins is getting at the basic and legitimate issue of how an employee is defined. The answer is that the law doesn't necessarily deal in philosophical absolutes. Recognizing a Big Ten quarterback as an employee doesn't require anyone to work out an intricate system for determining whether anyone else is right this very second. As Frampton puts it:


Most of the academics who have written about whether college athletes qualify as "employees" under the NLRA focus on men's basketball and football players for a simple reason: the revenues generated by those two sports far outstrip other sports. There are a few programs in other sports that generate significant revenues, too, and if players in men's basketball and football prevail, players involved in one of those other programs may attempt to unionize, too. At some point, though, there may be some arbitrary line-drawing that takes place based on total revenues. (Note that the NLRB already does something similar with other industries.)

A secondary issue here involves the fact that the NLRB ruling only deals with private institutions like Northwestern. Some version of Jenkins's logic could be persuasive to a state body should students at, say, Ohio State try the same stunt. ("We can't afford to pay our poor, benighted volleyball players NFL-level salaries," someone in a position of authority will surely object, "and that's why we shouldn't have to pay our football players modest stipends.") Again, the answer is that the law doesn't deal in absolutes. Per Frampton, citing a law review article he co-authored with Nick Fram:

The short answer is that players at public universities are not governed by the NLRA, and so state law will govern whether those players are "employees." The law of many states is less favorable to student-employees than federal law, but in many jurisdictions it is actually much more favorable (e.g., Florida, California, Michigan). In many jurisdictions where there are big-time college athletics programs, the courts have long recognized that individuals can be both "students" and "employees" of a university at the same time.

(No one, by the way, needs to worry too much about that Harvard rower's status. The NLRB decision deals with players who have grant-in-aid scholarships. Harvard plays in the Ivy League, which doesn't offer those, on principle.)

How would a union work?

Jenkins's next set of cognizable concerns—we'll elide any discussion of whether Big State U. is actually using its defensive-line training as a way of sending mature, educated 22-year-olds out into the world—involve the basic functioning of a union: Who could join it, and how it would operate.

What's the bargaining unit? Is it just football and basketball players who can unionize? [...] Can women demand equal pay — and if not, why not? [...] Who is going to represent them in bargaining — and where will the money to pay them come from? Will athletes have to pay dues?

Again, the answer here is that this is essentially like asking how purple sounds. A limited ruling on a limited question does not require the construction of a classification scheme involving tens of thousands of people playing dozens of different sports. That the NLRB ruling heavily focused on the revenue-generation element of the case, though, provides a pretty clear tell as to what the initial focus of any unionization effort will be:

Clearly, the Employer's players perform valuable services for their Employer. Monetarily, the Employer's football program generated revenues of approximately $235 million during the nine year period 2003 – 2012 through its participation in the NCAA Division I and Big Ten Conference that were generated through ticket sales, television contracts, merchandise sales and licensing agreements. The Employer was able to utilize this economic benefit provided by the services of its football team in any manner it chose. Less quantifiable but also of great benefit to the Employer is the immeasurable positive impact to Northwestern's reputation a winning football team may have on alumni giving and increase in number of applicants for enrollment at the University.

According to Frampton, meanwhile, the answers to the two most salient issues here are fairly straightforward. Title IX implications were dealt with pretty succinctly in a recent piece in The New York Times. ("The rights of workers in the highly commercialized college sport entertainment industry ought not to be pitted against the civil rights of athletes in an educational sport system.") Meanwhile, the question of the mechanical workings of the union—things like dues, who would represent it in negotiations, and so on—is basically up to its members, within the broad parameters of settled federal labor law.

As with all unions, the members themselves get to decide who represents them in collective bargaining. The regional director found that "[a] substantial portion of the Employer's scholarship players have also signed authorization cards seeking to have the Petitioner [CAPA] represent them for the purposes of collective bargaining, and some of them, have taken a more active role with the Petitioner, including Colter. In addition, the players will presumably have the opportunity to participate in contract negotiations if the Petitioner is ultimately certified." The Department of Labor oversees labor organizations.

Will unionized players be able to switch teams?

Jenkins actually asks this question:

What about transfer rules? If players are employees, then can they simply quit? At the end of a game can they cross the field and ask for a job from the opposing coach?

No need to bring Frampton in on this one when we can just point out that the 13th Amendment, which prohibits involuntary servitude, remains in force. Yes, players will be able to quit if they're unionized, just as they can now. Yes, they'll be able to switch teams, just as they can now. But unless these athlete unions become the strongest unions of all time, there will presumably be some sort of contract language that would prevent players from swapping jerseys at halftime. (Remember: The players were granted the basic right to bargain as a group. This isn't a magical power; this just means that every few years they get to sit down with their employers and hammer out a contract governing the work they perform.) No one needs to worry that poor little Northwestern will have its players poached by Michigan in the third quarter—and really, no one should be scandalized by the idea that a union might make offseason transfers easier, given how many coaches will drop a job at the first hint a new one might offer them one thin cent more than the one they already have.

If a player is an employee, doesn't he have to pay taxes on his scholarship?

Returning to the land of reason, Jenkins raises an entirely fair point about the tax status of scholarships and other benefits, which might not be adequate compensation, but are still worth a whole lot of money. "If players are employees," she asks, "then that is taxable, right?" As Frampton notes, though, this was actually already brought up in the NLRB ruling, and the way in which it was done suggests that the better question to ask is, "If they're employees, why isn't their income taxable?"

The tax issue is an important one that the regional director addressed:

"While it is true that the players do not receive a paycheck in the traditional sense, they nevertheless receive a substantial economic benefit for playing football. And those players who elect to live off campus receive part of their scholarship in the form of a monthly stipend well over $1,000 that can be used to pay their living expenses. The fact that the Employer does not treat these scholarships or stipends as taxable income is not dispositive of whether it is compensation. See Seattle Opera v. NLRB, 292 F.3d at 764, fn. 8."

The Seattle Opera case cited by the regional director—which we highlighted in our article—could be significant. Here's what we wrote in the law review piece:

"These 'student-employee' cases will likely frame any NLRB treatment of college athletes, but another (entirely overlooked) case involving 'auxiliary choristers' at the Seattle Opera may lend additional support for college athletes. The case focused on the 'employee' status of a group of choristers, who were essentially—at least as much as college athletes—'amateur' entertainers. Rejecting the Seattle Opera's claims that the choristers were 'volunteers' motivated by their love of opera (rather than the minimal compensation provided), both the NLRB (in 2000) and the D.C. Circuit (in 2002) held that the choristers were 'employees' under the NLRA.

The employment relationships of the 200 'auxiliary choristers'—a pool of talented opera aficionados occasionally called upon to supplement large productions—are analogous to those of college athletes. Like promising athletic recruits, the choristers signed 'Letters of Intent' with the Seattle Opera, obliging them to comply with attendance and decorum requirements set forth in a handbook. Once engaged, the opera 'possess[ed] the right to control the [] choristers in the material details of their performance,' giving them 'artistic feedback . . . and dramatic direction while on stage.' In exchange for their participation, the choristers received ten tickets to dress rehearsal performances and a modest one-time 'honorarium' (equivalent to $2.78 per hour, when spread over twenty-two rehearsals and performances) to defray parking and transportation expenses. The 'choristers provide[d] a service to the community and presumably derive[d] pleasure and satisfaction in performing,"'the Board conceded, but the opera's reimbursements also constituted a form of material compensation for the choristers' labor or services. This created an 'economic relationship,' however rudimentary, making the choristers 'employees' under § 2(3) of the NLRA. Though the Seattle Opera and college athletics plainly cater to different audiences, in many significant respects—a prestigious nonprofit employer, informal employment agreements, codified behavior guidelines, controlled and directed performances, disputed subjective motivations, and minimal (though artfully characterized) compensation—the labor of their indispensible performers is virtually identical."

The fact that workers (a) earn less than minimum wage and (b) their compensation is not treated as "taxable income" isn't determinative of whether they qualify as "employees" for collective bargaining purposes.

In other words, if Alabama starts paying wideouts hundreds of thousands of dollars, yes, that would presumably be taxable. A change in status from "student-athlete" to employee, though, doesn't magically change the nature of compensation. (It may be worth noting here, by the way, that that same court that upheld the highly-analogous-sounding Seattle Opera ruling will likely hear any appeal of the NLRB decision at hand.)

How much would players be paid?

Jenkins's final and most telling set of questions has to do with what players would actually be paid, and the structures that would be built around that pay.

What will be their earning minimum? Will star players have to give up some of their earning ability, see their income restricted, in order to establish minimums for lesser players?

These are legitimate questions—but by raising them as an objection to collective bargaining, Jenkins is essentially saying that because they haven't yet been answered, they shouldn't be. After all, answering precisely this kind of question is what collective bargaining is for. It's a bit like saying that there's no point to keeping a dictionary around if you don't already know the definitions of all the words. Frampton:

As Archibald Cox—one of the most prominent labor law scholars in the country—put it, this tension adheres to all collective bargaining: "The group interests... may conflict with the claims of individuals because several classes of individuals have divergent interests, because the demands of group organization and coherence clash with individual self-interest, or even because the union officialdom is not immediately responsible to the wishes of a numerical majority of its members."

As in any collective bargaining situation, that will ultimately be for the employer and the democratically-chosen representatives of the employees to decide.

In other words, no one knows what players would be paid, if they ever are, and no one knows what kind of restraints players would accept on their pay to make for an equitable distribution of money among themselves. Getting answers to questions like that is much of the point of forming a union.

That all of this eludes Jenkins—who not long ago was agitating for the basic rights of players, including "the right to representation, the right to labor and the right of due process"—is weird. What matters, though, is that she, like many critics of unionization, seems to imagine reform without downsides, in which all agree on what should be done and then do it, implementing changes easily and avoiding unseemly conflict.

The fact is, however, that there is conflict here. Management and labor—schools and "student-athletes," if you must—have opposing and irreconcilable interests. There is a system in place for solving such conflicts. It's called collective bargaining. That no one knows specifically how certain aspects of unionization would work yet isn't, as they say, a bug—it's a feature. They're questions for the union's members to decide and to negotiate.

At any rate, even those who just can't accept that shouldn't let the perfect be the enemy of the good. Every sane person without a financial stake in the matter—and even some who do directly benefit from the status quo—agrees that the system is fucked. The situation isn't problematic. It doesn't have some issues that a few tweaks here and there would clear up, allowing us to watch March Madness in moral quietude. It is irrevocably fucked. If change is going to happen—and it will, between the NLRB ruling and the Ed O'Bannon case and the UNC scandal and the endless parade of new controversies that seem to scurry about the sports world like rabbits fleeing a coming storm—it will be huge, involving massive changes. It will not be nice, it will not be pretty, and it will not be neat. Instead of worrying that things will change a lot, and demanding specific answers to questions that by their nature don't have them, we should rejoice that change is happening at all.

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