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This is a case where the caption says it all. The National Labor Relations Board’s decision as to whether football players at Northwestern University can unionize is introduced in the opinion as “Northwestern University — Employer, and College Athletes Player Association — petitioner.” That simple but bold verbal stroke renders the rest of NLRB Regional Director Peter Sung Ohr’s decision largely redundant. If Northwestern is classified as an employer, how then can the football players be anything other than employees? And, if they are employees, then surely they have the power to form a union or players’ association under the aegis of the Act.
Taken in this robotic fashion, a major question of labor policy is reduced to a mindless syllogism that manages to ignore all the difficult institutional issues on this case, some of which I addressed in my earlier Ricochet post on this question, soberly entitled “No Good Answers on Reforming College Sports.” What is striking about the long but aimless opinion of Regional Director Ohr is that it is virtually devoid of any serious examination of the difficult issues that are involved here.
The opinion is roughly divided into two parts. The first half is a detailed (indeed, tedious) examination of all the strict controls that Northwestern University imposes on its football players before, during, and after the football season. The purpose of this demonstration is to tell us what we already know: that the students who receive football scholarships are subject to strict oversight with respect to every aspect of their behavior. We should hardly expect less.
The second half of the decision then examines the legal issues that emanate from this university control over the players. The inquiry starts with the statutory definition of an employer. The reader hoping for something informative will be sadly disappointed, as the statutory definition of an employer is … well, an employer or an agent of an employer subject to statutory exceptions (including, conveniently, the United States government). The definition of an employee is every bit as informative. It covers “any employee,” including employees fired or otherwise let go by an employer.
It is nothing short of amazing that a major piece of legislation could have such a thin coverage provision. At this point, there is no other place to look except to the common law definitions of an employer. Mr. Ohr concludes that a common law employee “is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.” But what he never asks is whether the common law definition has ever been applied to student athletes in any of the myriad contexts in which that issue could arise, such as unemployment compensation laws or the overtime and minimum wage provisions of the Fair Labor Standards Act of 1938.
In addition, Ohr flunks the most elementary question of characterization, which asks: to what extent, prior to this litigation, did Northwestern regard itself as an employer or did the players regard themselves as employees? I cannot think of a single instance in ordinary conversation where students on scholarships have been called employees, or where their scholarships have ever been treated as compensation for services rendered.
It would be one thing if there were elaborate efforts by employers to pretend their employees were something else — which often happens when companies classify workers as “independent contractors” in order to escape a wide range of requirements dealing with taxation, coverage under ObamaCare, unemployment insurance and the like. That, however, is decidedly not the situation in this case, where the charge of the artificial use of language is more properly directed at Regional Director Ohr, who at no time entertains any of these considerations.
His opinion is wanting for at least three other reasons. The first deals with questions of coverage. He does note that walk-on players cannot be treated as employees under the Act until they receive a scholarship—whoops, “an employment contract.” But he does not deal with the question of how this analysis applies to football programs at other colleges where the scholarships are smaller and the work obligations are less stringent. Nor does his blinkered decision give us any clue as to what happens with respect to other sports where the exchange of services under supervision for cash compensation also applies. What happens with Division II football, men’s and women’s basketball, and a host of more minor sports? Any public official who starts down this path should have at least some sense of where the journey will end. But Ohr does not even venture a guess as to what will happen at the next bend in the road.
The second question deals with the nature of the negotiations that will take place. The National Labor Relations Act requires that the parties bargain collectively with respect “to wages, hours, and other terms and conditions of employment,” (construed broadly, as always). Superimposing this on Northwestern and its football players is a practical absurdity.
Is it a subject of collective bargaining that the students have to take study hall, as is presently required? That they have to eat meals in the dorms? That they have to meet the minimum standards of eligibility to continue to maintain their standing at the University? Each and every issue raised in Ohr’s detailed description of the relationship between the university and its players looks as though it is subject to bargaining. And while Director Ohr said that he thought academic issues took a back seat to the primary work involved in this case, it is far from clear whether academic issues also would be subject to bargaining. At this point, no one knows.
The third question is how the choice of the individual school as the appropriate bargaining unit allows for the coherent obligations of a league, especially when the “employees” of state schools are not subject to the Act (that is also true of the “employees” of the service academies). To maintain parity among teams, leagues can only operate subject to uniform rules. Once each individual bargaining unit goes its own way, the number of vital issues likely to be mishandled become virtually limitless (which is precisely why professional sports conduct these sorts of negotiations at the league level rather than the team level). Why it is appropriate to pick this bargaining unit is beyond me.
At this point, I have only scratched the surface of this effort to shove a square peg into a round hole. The matter shall now be referred to the National Labor Relations Board in Washington, whose first order of business should be to overturn this utterly unpersuasive decision and leave the status quo ante in place. If something is to be done, Congress should be the one to do it. Then again, it’s only likely to make matters worse.Published in