News & Insights

OPINION: Unions wrong for college athletics
April 15, 2014
by Robert Conte


Published: South Bend Tribune, Sunday, April 13, 2014 –

On March 26, the regional director of the National Labor Relations Board, Region 13 (Chicago) rendered a decision that could change the landscape of college sports. Northwestern University’s scholarship football players are employees under the National Labor Relations Act, and, as such, they have the right to unionize. A vote has been ordered for April 25 for this very controversial election.

The decision is controversial because the NLRB only has jurisdiction over private schools. Public school players seeking to unionize would have to gain approval from state-run labor boards. The board’s decision only applies to 80 of Northwestern’s 112 players, specifically those who are grant-in-aid scholarship players receiving tuition, fees, room, board and books. The other football players, “walk-on” players who are also part of the football team, are excluded from the “unit” designated as employees. Will this distinction affect the cohesiveness of the team?

During the board-conducted election, the Northwestern scholarship football players will have a choice — to vote, union “yes” or union “no.” If it is “yes,” and forgetting for a moment of all the legal challenges that lie ahead, things will get interesting, as the parties prepare for bargaining. In this process the employees have the right to bargain over “wages, hours and other terms and conditions of employment” In a typical bargaining setting, this means employees could bargain over the wages they are paid, the time they report to and leave work, work rules, layoff and recall procedures, whether they are required to work overtime and paid for such work, holidays, vacations and a wide variety of other benefits and conditions of employment. How will these bargaining issues fit into the rules by which a football player must comply as set by the NCAA? Will there be a separate standard and “conditions of employment” for those who are not unionized?

This decision will affect all sports, at all levels. Here are some additional concerns:

Will students receiving scholarships related to their participation in non-athletics programs (cheerleaders, musicians) assert rights to organize under the NLRA?

Will scholarship players assert that they are protected by the Occupational Safety & Health Act (work place safety) or the Fair Labor Standards Act (minimum wage and overtime premiums)?

Will scholarship football players assert their right to worker’s compensation benefits (work-related injuries)?

Will athletic scholarships now become taxable income to the student athletes?

The labor laws have a purpose — they exist for the benefit of employers, employees and unions.

In my opinion, there is a fundamental difference between student football players who are compensated with grant-in-aid scholarships and a unionized workforce in general.

If there is a union at one school, and because of their athletic and scholastic differences, it is likely that each team/school would have its own union. When one union bargains for better “terms and conditions,” will athletes recruited at other schools demand those same things?

The idea of college football scholarship players forming a union is not good for the world of college athletics. The ruling will affect every aspect of intercollegiate athletics at all levels. In this game, there will be no winners.

Robert F. Conte is a labor and employment attorney at May Oberfell Lorber in Mishawaka.