Although it’s still the first set of downs in the game between Northwestern University and CAPA (the College Athletes Players Association union seeking to represent Northwestern’s football players) let’s take an instant replay time out to review the last play — the March 26, 2014 NLRB Regional Director’s decision ordering a representation election.   In his decision, the Regional Director specifically found that it would “effectuate the purposes of the [National Labor Relations] Act” (or NLRA) to assert jurisdiction in this case.  So while for over 40 years the NLRB has declined to exercise jurisdiction over the horse racing industry due to the extensive state regulations covering it (among other examples where it has refused to become involved), in this case the Board apparently found that college sports should not be exempt from NLRA coverage despite the NCAA’s incredibly detailed rules, regulations, and reporting requirements governing college athletes and athletic programs.  Like many actions the NLRB has taken or tried to take over the past several years (think “quickie elections,” “micro” bargaining units, class action waivers, and social media rulings) this is yet another significant expansion of the agency’s reach.  And upon further review, it’s clear there should be a five yard penalty — this time against the referees from the NLRB — for a false start.

But let’s be clear: this is not about whether college athletes are “cash cows” who are “exploited” by their universities, deserve revenue from television coverage or the sale of college logo apparel, or any other additional benefits beyond what they already receive with their scholarships.  We can leave that to other litigation like the O’Bannon case against the NCAA concerning royalties for using the likenesses of college athletes in video games now pending in Los Angeles, or the antitrust cases about limits on the value of scholarships filed earlier this month against the NCAA and major athletic conferences by, among others, West Virginia football player Shawne Alston and Rutgers basketball player Jonathan Moore. In the game being played between Northwestern and CAPA, the threshold statutory question is whether it “effectuates the purposes of the Act” to assert jurisdiction and find that college football players are “employees within the meaning of Section 2(3) of the NLRA.” 

Likewise, despite the fact they receive no wages or W-2s at year’s end,  let’s not consider the other employment law considerations arising from a finding that college athletes are employees.  If college athletes are employees, the possibilities are almost endless for an enterprising college athlete’s lawyer: state and federal minimum wage suits or FLSA collective action cases for unpaid overtime, working “off the clock” and donning and doffing those helmets, pads and uniforms.  If the Title IX considerations weren’t enough, why not a Title VII case for the 5’ 2” coed who wants to play fullback for Clemson.  And just wait until OSHA gets done regulating college athletics.  But again, the play under review here is limited to the game between Northwestern and CAPA under the NLRA.

And that’s why there should have been a five yard penalty for illegal procedure.  Under the NLRA, employees have the right to bargain over “wages, hours, and other terms and conditions of employment.”  In a typical situation, employees bargain over the wages they are paid, the time they report to and leave work, work rules, job bidding, layoff and recall procedures, retirement benefits, holidays, vacations, how long they have and whether they are paid for their lunch period, and whether they are required to work overtime and how it is distributed.  (In fact, “other terms and conditions of employment” under the NLRA has been construed so broadly as to include bargaining over the prices charged in company lunchroom vending machines.)   With college football players, little of that remains true.   

Would a union be able to bargain over whether seniority prevails and upperclassmen are entitled to start before freshmen or sophomores? Like the equalization of overtime contained in many labor contracts, might a union bargain over equal playing time for all?  Could a union negotiate a process to establish who plays what position, which players should get a starting role, and how and to whom to distribute  carries and passes?  Could a quarterback face internal union discipline for calling an audible and depriving a wide receiver of the pass that should have been thrown to him?  Would there be a grievance procedure and binding arbitration for a player who was deprived of his contractual playing time?

Okay, these are admittedly extreme examples.  Athletes and collective bargaining can and do coexist.  Paid, professional athletes have unions, and those unions have negotiated effective labor agreements with, among others, the NFL, MLB, NBA and NHL.  But here’s where college and professional sports differ: professional athletes have a single labor contract that governs all teams in that league.  They all play by the same rules (which they negotiate with the union), whether it is salary caps, when training camp starts, free agency rules, or drug testing protocols.  Their labor agreements typically set minimum thresholds, with each player and his agent able to negotiate separate, individual contract terms within the collective bargaining agreement’s framework and subject to union and league approval. In professional sports, the playing field is even for each team, its players and their union.

Unionization in college sports, however, would be different.  Even the NLRB Regional Director noted in his decision that many terms for college athletes are governed by either NCAA regulations or other rules applicable to all other students at that college or university.  So unless Northwestern decides to ignore the NCAA’s rulebook, the university’s hands will be tied in many respects.  And unlike a labor contract that covers every team in the league with the same terms, the current NLRB case does not involve the NCAA and will create a bargaining unit and eventual labor agreement for just Northwestern.  In his decision, the Regional Director even noted that the NLRB only has jurisdiction over 16 other private colleges and universities in the NCAA’s top football division.  With over 120 major college football programs, fewer than 15% might face unionization and one-off, individual collective bargaining.  Of course, the numbers will be somewhat higher in college basketball, where more private colleges and universities play the sport and would be subject to the NLRA.  And even public universities could face one-off unionization and collective bargaining, where public universities in “blue states” (think Pac-12 such as UCLA or Cal-Berkley, or Big 10 such as the University of Illinois) might face state labor relations agencies that would follow the NLRB’s lead, while “red state” labor relations boards (think Crimson Tide, Florida Gators and other public ACC or SEC schools) would more likely dismiss any employee-athlete petitions.  Wait and see what happens when teams have to negotiate “working conditions” and then compete under different sets of rules.

Some of the stated logic for players unionizing is negotiating for more limited practice time and medical benefits after a player’s career ends.  Does anyone really believe that a college football coach would agree to less practice time than the NCAA allows? As the NLRB Regional Director noted in his decision, the amount of practice time (and unsupervised, informal but allowable training time) is scrutinized by the NCAA.  Every university has a compliance department to keep records establishing that they take advantage of but do not exceed the permitted limits.  What kind of a sales pitch will it be to tell recruits — typically highly competitive 17 and 18 year-olds who are accustomed to and want to win — that “we won’t work you as hard as you would at other schools?”  Imagine how other coaches will say “Go to Northwestern if you want to relax; play for us if you’re willing to be pushed to be your best, have a better shot at making the NFL, and win a national championship.”  Perhaps one advantage for unionized college football teams will be the ability to scale back on the athletic department’s NCAA compliance staff, since instead there will be a union steward to certify that the players kept to the lesser training schedule contained in the labor agreement. Likewise, the NLRB Regional Director ruled that players who have exhausted their playing eligibility will not be includable in the players’ bargaining unit or eligible to vote since they are no longer active employees. What the decision fails to note, however, is that since an employer need not bargain over benefits (including healthcare) for “retirees” or former “employees,” any negotiated  benefits for players who have exhausted their eligibility might in practice be limited.

Like players who have exhausted their playing eligibility, the NLRB Regional Director ruled that walk-on or non-scholarship players are not employees and would not be part of the players’ bargaining unit.  Because these walk-ons are something like “outside contractors” who are nevertheless performing bargaining unit work, could the players union seek to limit the number of these contractors or their playing time?  And because football teams are limited to 85 scholarship players under NCAA rules but most football scholarships are for a one-year, renewable terms, what happens if a football player’s scholarship is not renewed?  Will the football team face a grievance or unfair labor practice charge and have to litigate whether or not one player or another was entitled to that scholarship?  If an employee-player’s scholarship is restored via the NLRB, what happens if the University has already reached its maximum limit under NCAA rules?  

If scholarship athletes are employees under the NLRA, will a union or player be able to file an unfair labor practice charge if an employee faces a suspension for a game?  Will the “employee” be able to file a grievance over the suspension?  Under another of the Obama NLRB’s recent decisions, when a union represents employees and there is no collective bargaining agreement then in place (like during first contract negotiations), an employer may have an obligation to bargain with the union before its suspends an employee.  Imagine a situation in which a player faces a suspension from one or more games for violating NCAA or team rules, but the coach cannot impose the suspension because it did not have an opportunity to confer or bargain with the player’s union representative.

The Regional Director noted in his decision that Northwestern’s football players are required to be Facebook “friends” with their coach, so that he can monitor the players’ posts. Similarly, they must abide by a strict social media policy and are prohibited from giving media interviews except those arranged by the athletic department.  After all, what coach wants to give bulletin board fodder to next week’s opponent?  What the Regional Director failed to discuss, however, is that — while these rules make sense in a college sports environment — according to recent NLRB decisions about social media, employee surveillance, confidentiality rules and other employee handbook provisions, all of them would likely be prohibited as unfair labor practices and unlawful interference with NLRA Section 7 rights.  Based on this conduct, might the NLRB even issue a Gissel bargaining order requiring Northwestern to recognize and bargain with CAPA if it loses the election?  

Under the NLRA, employers and unionized employees typically enforce their demands via economic pressure: a strike or a lockout. Will college football players go on strike if their demands are not met?  What happens when the university suspends their “wages and benefits” since they are not “working” during the strike, such as tuition, meals and lodging?  Will the non-bargaining unit “walk-ons” be allowed to play the game? Under the NLRA and NCAA rules, can the strikers be “permanently replaced” by granting scholarships to others?  If a player has been replaced, what reinstatement rights will exist when a coach is trying to recruit classes and offering scholarships for succeeding seasons?

And finally, if scholarship football players are entitled to union representation, why wouldn’t the rules be the same for scholarship players in every other collegiate sport, whether it generates revenue or not?   What happens when the scholarship athletes on the men’s water polo or women’s gymnastics team file a petition with the NLRB?   

Again, this is not about whether college football players should be paid.  College sports is big business, and other litigation is pending over big dollar issues such as royalties, scholarship dollar limits, licensing fees, and television revenue.  But it deserves a five yard penalty for a false start to claim it “effectuates the purposes” of the NLRA in finding that college football players are employees.  And since the same logic would undoubtedly hold true for scholarship basketball players, it’s appropriate to shamelessly borrow another sports analogy:  As we enter the second weekend of the NCAA basketball tournament, perhaps the real March Madness is with the NLRB.