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The NLRB, Northwestern Football, and the Theater of the Absurd
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 General
As far as I am concerned, sports are the true opiates of the masses (even though I have had bouts of addiction in my past).
College athletics are already an absurdity. Anything, to my mind, that makes colleges more about education and less about distractions, is a Good Thing.
I cannot wait to see:
What a way to educate Americans about the true nature of unionization!
It’s hard for me to be against anything that flies in the face of the NCAA monopoly cash cow, even an obviously stupid pronouncement. If any organisation needs to be taken down a peg, it’s the NCAA.
How fitting that this happens at a Chicago school. (OK, Evanston. don’t get picky.)
What about non-sports related scholarships? My nephew is working his Masters and has a music scholarship. He has to perform to a standard of excellence every bit as high as a football player’s and his behavior is similarly if not equally proscribed. Is he not an employee of the University? Oh wait, he goes to a state university, but why would that matter?
Well said. There is, too, something pleasurable in the sight of universities having to face up to their strange relationship with their athletes, on the one hand, and to the consequences to themselves of the liberal behemoth they have helped to create.
As for unions, unions are often meant for evil; but anything used against the NCAA is meant for good.
BTW, I saw some NCAA flack come on Squawk Box the other AM and could barely stop from screaming at the set. He was smarming on about the “other 90 percent” of student-athletes who would be harmed vs. the 10 percent who get drafted.
Never mentioned that no one would shell out the big bucks for TV rights to March Madness or the BCS Championship Game to watch those “other 90 percent” play.
I initially went to college on a music scholarship, and my time was hardly “strictly controlled” by the college. It’s emblematic of what a monster big-time college athletics has turned into that student-athletes have to have so much of their time devoted to an extra-curricular job. I would be shocked if students on any other sort of scholarship – whether artistic, academic, religious, or of any other type – were nearly as highly regulated as these athletes.
Sports are no more an opiate than movies, books, tv, news, picking your nose, etc. Please define what should be important, interesting, do not use the opiate crap!
That was a really interesting post. It really does raise more questions than answers about what happens to college sports now. It seems that this will create many problems which many schools may not be able to handle. I’m not entirely sure if the numbers are still good, but last I read, sports teams tend to cost colleges money.
The weird thing is that I’m sympathetic to the players. While there are always exceptions to the rule, most players are simply used by the colleges and allowed to skate through college without gaining any marketable skills, and they probably won’t end up playing pro-football. College is their last shot at anything. I think colleges should be allowed to pay their athletes, and let athletes get money from endorsements.
But I don’t think we need this type of ruling. (Based on what I’ve read.)
I’d love to see a system where athletes are given scholarships redeemable at a later date. Let the kids play, and then attend college after their playing days are over.
As if we need any more evidence that the “student-athlete” myth is just that…
A 148-word paper got an “A-” at UNC.
[transcribed from the above link]
On the evening of December Rosa Parks decided that she was going to sit in white people section on the bus in Montgomery, Alabama. During this time blacks had to give up there seats to whites when more whites got on the bus. Rosa Parks refused to give up her seat. Her and the bus driver began to talk and the conversation went like this. “Let me have those front seats” said the driver. She didn’t get up and told the driver that she was tired of giving her seat to white people. ” I’m going to have you arrested,” said the driver. “You may do that,” Rosa Parks responded. Two white policemen came in and Rosa Parks asked them ” why do you all push us around?” The police officer replied and said ” I don’t know, but the law is the law and you are under arrest
Anyone who writes like that has no business on a high school campus, let alone a college one.
Are college athletes exploited by their colleges? Hardly. They agree to a certain deal, usually a free ride scholarship in exchange for playing one’s sport. They know what they are getting themselves into, and no one puts a gun to their head. They get the opportunity for a good education, and many make good use of the opportunity. I fail to see how they are exploited. If there is a better deal out there for them and their athletic skills (professional leagues, foreign leagues) they should take it.
What makes the situation tough is there are no good guys, really. The NCAA is a vile, corrupt, self promoting, greedy cabal. Between the TV rights, clothing and video game licensing deals, it’s pretty obvious that a lot of money is being made on the backs of a few players. The fact that the players seem oblivious to the fact that they’ve taken $100,000-$200,000 in compensation is equally aggravating.
The tutor who wrote this for the athlete should be fired.
They’re exploited because the NCAA is a cabal that doesn’t allow a labor market for their skills. It’s ridiculous a football player who plays at Alabama is paid the same or probably less as a Water Polo player at Duke. Like everybody else they should be paid for the value they bring to their money making institutions.