The Time has Come to Unionize: One Lawyer's Perspective

Jerry Lai-USA TODAY Sports

The debate surrounding the subject of paying college athletes has taken another step, and has assuredly gone above mere debate. College athletes have begun an official movement that goes above just putting words on uniforms. It appears that these college kids are now getting serious about getting paid.

Some of you might have heard about a group of Northwestern Student-Athletes filing with the National Labor Relations Board (NLRB) in order to create allow the National College Players Association (NCPA) to be recognized as a union. This is the biggest move, at least that I am aware of, by college students in order to break through restrictions that are placed on their collective abilities to be compensated, more than just getting scholarships, for bringing Universities all over the country lots and lots money.

This article is meant to accomplish two things: (1) to give the every day fan some background on the parties involved in this story; and (2) to lay out, to the best of my ability, the law governing unionizing and the direction that this collective action will head now that the petition has been filed with the NLRB.

NCPA

The NCPA was founded back in 2001. The non-profit started when the president, then UCLA linebacker Ramogi Huma saw his fellow teammate, Donnie Edwards get suspended by the NCAA for accepting groceries from someone when his scholarship money ran out at the end the the month. From there, the organization has grown to more than 17,000 members across the country.

Over the years the NCPA has been pivotal in eliminating limits on health care for college athletes, giving universities the option to offer multiple-year scholarships, and eliminating the $2,000 salary cap for these athletes on money earned from part-time jobs to name a few.

Now the NCPA is partnering up with some football players enrolled at Northwestern University, namely the starting quarterback Kain Coulter, to get college athletes at private universities status as "employees."

All Players United

This year a huge push was made by the NCPA. Back in September reports finally broke that something was brewing when football players all over the country wore tape on their wrists with the letters APU written on them in black sharpie. Apparently this had been in the works for months, with many of the interested players participating in weekly conference calls in an attempt to come together at the same time in a big way.

Needless to say, that small gesture by the football players were a huge wake-up call to universities all over the country. After this gesture, high profile players from all over the country began calling the NCPA. According to Sonny Vaccaro, "No one has ever made the visible step -- no one," Vaccaro said. "They've all been afraid of their coaches. This was a major, major, major step forward. Eventually, I think some players will form (a union). They need the representation."

His comment ended up being prophetic.

To Unionize ...

Fast forward to January 28, 2014. Last Tuesday the NCPA filed petition for recognition as a union with the NLRB in Chicago. It might go without saying, but this is unprecedented. For a little context, the last time a court recognized a college athlete as an "employee" was back in 1953. In that case the QB for the now non-existent University of Denver football team (GO PIONEERS!) Earnest Nemeth was injured while playing football. He applied for workman's comp. because his employment in other part time work for the University was dependent upon his participation in such athletics. The Supreme Court actually upheld the award to Mr. Nemeth.

That was the first and last time this has ever happened. After the Nemeth decision hit, the NCAA got scared and went on a media blitz, "labeling" all the kids playing sports at any university across the country as "student-athletes," emphasis on student.

Now the players and NCPA are waiting for a decision from the NLRB, which could take anywhere between 7 and 12 weeks according to the NLRB website. Based on what I read here, the NLRB decision will ultimately come down to an answer of the following 3 questions:

  1. Are college athletes employees?
  2. Are college athletes volunteers?
  3. Can these athletes be considered an appropriate bargaining unit?

The Law

Just about anyone can be considered an employee. In all reality, according some very well-established case law, the better definition is who is not an employee. The requirement is this: Any individual who, "without promise or expectation of compensation, but solely for his personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit," is outside the sweep of the Act. In other words, doing something fun without expectation of compensation.(You can read that bit here ... scroll down to page 295 ... and read it at you own peril)

If you ask me, this whole thing comes down to whether or not the students getting scholarship money and a university education in exchange for their services as "student-athletes" is compensation, or solely for personal purpose or pleasure.

The Process

This fight will be going on for years. Once the Regional Director of the NLRB issues a decision, it can be appealed to the NLRB. From there it would go to the United States Court of Appeals, and, ultimately, to the US Supreme Court. The precedent does not look good for the students either. It will most definitely be an uphill battle. However, when you look at the facts, a very strong argument can be made that these students are, indeed employees.

I can't stop thinking that the students are going to win. As soon as their letters of intent go in, athletes have an immediate expectation of compensation: the school is going to provide room and board so these kids can do what they do best ... compete in sports. Schools don't just take anyone. Tens of thousands of dollars are spent each year in order to recruit top-tiered athletes to come to their respective schools. That's no different from the recruiting divisions in corporate America.

These athletes are sought after, in lots of instances as early as late elementary school. There are school budgets riding on convincing these young men and women to come to specific schools. These kids come to school expecting that they won't have to fork over ever-escalating tuition bills, book fees, tutor fees, rent and food bills ... things that every other kid, or their parents, have to come up with. To me, that is compensation.

Conclusion

I don't know how this is going to come out. However, I would wager a large amount of cash that this is a game-changer. Regardless of how this whole thing shakes out, the characterization of these kids as "student-athletes" is nearing the end of its tenure. The NCAA is going to have to make some changes, and they appear to be on the drastic side.

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