On Tuesday, before President Obama’s State of the Union Address took over American television sets, news of another potential NCAA lawsuit bombarded viewers’ television screens.
Most news stories involved Northwestern University’s starting quarterback and co-captain, Kain Colter, who aired his frustrations with the NCAA. Colter exclaimed, “[t]he system resembles a dictatorship where the NCAA mandates rules and regulations that [collegiate] players must abide by without any input or negotiation.” Some will brush off Colter’s outlandish statements, arguing that collegiate football players receive far more benefits than the ordinary non-athlete student—free tuition, publicity, and the training to develop skills that may transfer to a lucrative career in the NFL. Despite these claims, Colter’s remarks provide compelling reasons to explore the idea of collegiate player unionization.
This article will explore three specific topics relating to the Northwestern student-athletes’ historic step towards the creation of a collegiate players union. First, it will explain the factual basis for Northwestern’s athletes’ position. Second, it will determine whether Northwestern’s football players’ position is legally sound based on the principles of labor law. Finally, it will explore how Northwestern’s athletes’ attempt at unionization may change the NCAA landscape.
College Athletes Players Association’s (CAPA) Position
The Northwestern football players union formally calls itself the College Athletes Players Association (CAPA). Echoing the sentiments of Colter, CAPA takes the position that players deserve a seat at the NCAA bargaining table to ensure that collegiate athletes are treated fairly. This position on its face appears reasonable, and CAPA’s largest supporters are the United Steelworkers Union and the NFL Players Association.
Most observers recognize that CAPA’s position serves as a means to one end: to break up the NCAA’s monopolist-representative system over collegiate athletics and to give NCAA football players a voice to advocate on their behalf. While the word “monopoly” may be a loaded term, it accurately describes the NCAA that represents every Division I through III school and it wields unchecked authority. The NCAA creates restrictions for student-athletes, investigates them, and even sanctions them for violations of its by-laws. In addition to the NCAA’s unchecked governance, it limits its liability to student-athletes through non-guaranteed academic scholarships and insurance policies that do not cover many of the lingering and debilitating injuries that former collegiate players endure long after their college playing days. According to the NCAA, “[a]t a minimum, an athletics scholarship must be a one academic year agreement . . . Athletics scholarships may be renewed,” but the athlete’s school has the authority to make that subjective determination. Further, student-athletes are required to have personal insurance policies to play football, but the NCAA does not require that its member schools provide the athlete’s insurance.
Despite these criticisms, collegiate player’s face major obstacles to their historic run at establishing a legally recognized union to contest the Goliath NCAA. The NCAA’s chief legal officer, Donald Remy, criticized the Northwestern players “attempt to turn student-athletes into employees” through CAPA, because it “undermines the purpose of college: an education.”
Remy’s statements run contrary to CAPA’s opinion and runs afoul of CAPA’s mission as articulated by Kain Colter, which is “[t]o make sure that all student-athletes are set up for success long after their playing days are over.” The NCAA strategically coined and used the phrase “student-athlete” over the past 50 years in an effort to create the image that collegiate athletes are students, not employees, of their respective NCAA member schools. Therefore, as a non-employee, student-athletes should not receive any type of compensation or extra benefits outside of the general athletic scholarship.
The NCAA makes a strong argument, because it knows the legal significance behind labeling collegiate players “student-athletes,” instead of referring to them as football players or football athletes. The NCAA actually manufactured the term, “student-athlete,” after it received an unfavorable judgment in University of Denver v. Nemeth back in 1953. In that case, the Colorado Supreme Court held that a University of Denver football player met the definition of “employee,” and therefore it required the university to pay him workers compensation for his football related injuries. This result shocked the NCAA, and it immediately devised the phrase “student-athlete” to weaken the potential effects of the Nemeth case holding.
In fact, the NCAA took other measures, informing NCAA member colleges and universities to refrain from using the term “players” and “athletes” in their athletic dealings to insulate against future litigation. Additionally, the NCAA sanitized its rule-book to reflect the newly created term of art, student-athlete. Since the Nemeth landmark case, the NCAA continues to stress that student-athletes should not be characterized as employees. For example, one NCAA ad campaign states, “just about all of its student-athletes will be going pro in something other than sports.” That is likely a small example of the money spent on shifting the public’s perception.
To embellish that student-athletes are not employees, the NCAA has set forth many internal audits for collegiate players and its NCAA member schools. The NCAA limits the amount of hours collegiate players can participate in official athletic activities to 20 hours a week during the season and 8 hours during the offseason. Most NCAA member schools mandate student-athletes sign time sheets stating they participated in university athletics for no more than the hourly restrictions.
However, it is fair to question whether players are actually cut off at the 20-hour mark because of the financial incentive for a schools to compete for spots in well-paid bowl games. NCAA member schools have millions of reasons to shortcut the NCAA system and student-athletes considering the option of blowing the whistle may be afraid of losing their non-guaranteed athletic scholarships.
The fact remains college football has been transformed into a cash cow for the NCAA and a substantial asset to many NCAA member schools that are willing and able to compete for market share.
The Legal Struggle For A Student-Athlete Union
Since the NCAA changed its terminology, it has been able to counter most legal disputes concerning the status of the student-athlete as it relates to employment compensation due in large part to the NCAA’s continued focus on promoting the student-athlete terminology. In the 2000 case of Waldrep v. Texas Employers Insurance Association, a former collegiate football player sued his school, TCU, for worker’s compensation after he suffered an injury that paralyzed him below his neck in a game against Alabama. However, the Texas Court of Appeals held that he was not a university employee, although he received a scholarship in exchange for playing for TCU, and therefore he could not be extended workers compensation. In the Court’s concluding words it acknowledged that “college athletics has changed dramatically over the years since Waldrep’s injury” that occurred in 1974, and it “express[ed] no opinion as to whether [its] decision would be the same in an analogous situation arising today; therefore, [its] opinion should not be read too broadly.” This narrow holding may play an important role in CAPA’s legal argument.
Consequently, the crux of CAPA’s labor dispute will rise and fall upon whether CAPA’s union has standing (the ability to legally be a plaintiff in a lawsuit) to bring suit against the NCAA. To establish standing, the National Labor Relations Board (“Board”) must find that the Northwestern student-athletes meet the criteria to be classified as “employees” under National Labor Relations Act (“Relations Act”). The Relations Act only applies to private entities, and that is the reason why Northwestern is required to meet its standards. Public institutions on the other hand are subject to individual state labor laws. Many state labor laws mirror the Relations Act. In sum, legal standing will only be established if Northwestern’s student-athletes are in fact rendered employees under the Relations Act. This is a tall task based on case precedent, even though it seems justified. Unfortunately, what seems right does not always equate to what is legally sound.
Based on the first major hurdle, it is no wonder the NCAA is confident in its position because a collegiate athlete has not been held to be an employee under the Relations Act in over 50 years. Consequently, if Northwestern’s student-athletes are not employees under the Relations Act, then they will not be able to collectively bargain. Thus, the CAPA attempt at unionization will lack any solid foundation.
To establish that CAPA players are employees it will need show that the Northwestern football players meet the labor standards established by the National Labor Relations Board. In 2004, the Board decided that student-athletes must meet the requirements of the common law (established rules through judicial decisions and proceedings) “Control Test,” as well as the Board’s own established “Primary Purpose Test.”
The first prong, the Control Test, mainly focuses on the control that the university has over the student-athlete. The more control the university has on a student the more likely this prong can be met. In the case of student-athletes, this standard is likely satisfied because of the substantial control a schools has on an athlete as compared to an ordinary student. Further, an athlete dedicates a year-round commitment to college football, and an athlete has to continuously remain in good standing with the athlete’s respective school. Last, it is clear that some athletes are highly dependent on their school’s scholarship assistance and without it they would not be able to attend that school, as Maurice Smith of the NFLPA stated “many [student-athletes] live below the poverty line.”
The second prong that must be met requires CAPA’s players to meet the Board’s Primary Purpose Test. This standard was established through a decision regarding a graduate assistant at Brown University (Brown University, 342 N.L.R.B. 483 (2004)). In Brown, the Board had to decide whether a graduate assistant is an employee under the Relations Act. The “Primary Purpose Test” was established to determine whether a graduate assistant’s underlying purpose is primarily economic or educational for being enrolled at an NCAA member school. In the Board’s decision it weighed factors such as the status of the graduate assistant as a student, the participation of the graduate assistant in educational system, the graduate assistant’s relationship to the faculty at the university, and the financial support afforded graduate assistants.
The Board found that the grad assistant passed muster on most of factors, but the financial aid the graduate assistant received in exchange for his role did not qualify him as an employee under the Relations Act. This appears to possibly leave the door open for student-athletes, unlike graduate assistants, that receive compensation in the form of a contractual agreement, the athletic scholarship.
Most noteworthy is that an NCAA member school’s athletic scholarship given in exchange for a collegiate athlete’s on-field services appears on the surface to be more similar to an employer-employee relationship than the typical financial aid compensatory system. The NCAA only requires schools to give a minimum 1 year scholarship, which seems very similar to year-to-year contract that an employer provides its employees. In fact, The Board in Brown pointed out “the financial support [for graduate assistants] is not dependent on whether the student performs services as a TA, RA, or proctor,” rather whether the school has the funding for graduate assistant’s financial aid. Whereas, a student-athlete’s scholarship may not be renewed when a player violates a school or NCAA rule.
The student-athletes’ football service is a revenue-generating asset. The Department of Education reported that during the 2012-2013 season the following teams were top five in all NCAA member schools for revenue relating to its football programs:
- (1) Texas: $109,400,688, an increase of $5,587,004 from 2011-2012
- (2) Alabama: $88,660,439, an increase of $6,666,677 from 2011-2012
- (3) Michigan: $81,475,191, a decrease of $3,734,056 from 2011-2012
- (4) Notre Dame: $78,349,132, an increase of $9,362,473 from 2011-2012
- (5) Georgia: $77,594,300, an increase of $2,604,882 from 2011-2012
Additionally, Northwestern reported its own sizeable revenue of $30,143,982, which is a 9.42% increase from the previous year.
Based on the above financial numbers, it seems to be unreasonable for the NCAA to argue that NCAA football players on those teams are not creating ample value for their respective schools. Of course, these raw numbers do not include expenses, but even if expenses were included, it would not paint an entirely accurate picture because “the Department of Education does not give solid reporting guidelines . . .[therefore], one university may report something as an expense that another chooses not to.”
These revenue numbers should be compared to the actual value of the athletic scholarship to grasp the enormous disparity between the bargaining power of a collegiate athlete with no representation and a multi-billion dollar business entity like the NCAA. According to the NCAA’s by-laws, the maximum scholarship amount a student-athlete can receive is “[a] full grant-in-aid . . . that consists of tuition and fees, room and board, and required course-related books.” This can be wide-ranging and highly variable from school to school.
The cost of attendance for incoming state residents during the 2013-2014 academic year for the aforementioned top five revenue generating football schools is $22,850 (Texas), $23,406 (Alabama), $24,186 (Michigan), $58,168 (Notre Dame), and $20,424 (Georgia). Student-athletes still have to pay for all other costs, including transportation, clothing, maintenance, and personal items that are normally allocated to non-student-athletes through their financial aid awards. At Michigan, these excess costs are an estimated $2,054.
The scholarship’s financial deficiency is not the only burden a student-athlete is confronted with when deciding whether to sign at a particular school to play football. In an interview with ESPN, Colder explained, “I think a lot of people want to make this an issue about players not getting paid. But, it’s about basic protections that we are not receiving right now, as far as medical conditions.” Maurice Smith, the NFLPA Executive Director, echoed Colter’s sentiment during an interview with Pro Football Talk, “pointing out that players are exposed to injuries not covered by insurance.”
Let’s not forget that “[f]ootball is a brutal game, and guys are going to tear ACLs and have major injuries,” as Colter stated. In fact, if further injury complications or surgeries are required outside the scope of a player’s eligibility due to playing NCAA football, it will not be insured. The impact of playing NCAA football has shortened professional careers, has decreased former NCAA football players’ NFL draft value, and has even given some athletes career and life-threatening ending injuries.
For example, Eric LeGrand of Rutgers was paralyzed while trying to tackle an Army football player during a kickoff. Adrian Peterson slipped in the draft because of a separated shoulder and broken collarbone suffered at Oklahoma. If not for his injuries during college, he would have likely been a top 3 pick, but his NCAA durability caused him to drop to the 7th pick in the 2007 NFL Draft. In hindsight, this cost Peterson $6 to $15 million dollars in guaranteed money. Peterson received $17 million in guaranteed compensation at pick 7, whereas the top 3 picks received $32, $27.2, and $23 million guaranteed respectively.
Arguably the most important part of CAPA’s current position is that playing college football, like playing in the NFL, can cause severe long-term health effects and life-long debilitating injuries because of the head trauma experienced during a hard-hitting sixty-minute game. In 2013, NCAA football players, including Kain Colter, sustained a reported total of 192 concussions.
On the flip side, the NCAA’s stance is also clear: “[s]tudent-athletes are not employees, and their participation in college sports is voluntary,” Donald Remy, the NCAA’s chief legal officer proclaimed in an interview. Remy’s argument is not unusual, but the dichotomy between an athlete’s voluntary participation in football and the mandatory nature of student-athletic scholarships and agreements deserves discussion. Imagine you are a high school athlete, your family is not able to assist you in paying for college, and a university offers you a scholarship to play football. Would you take its offer? It would be hard to pass up.
Before a collegiate athlete even laces his cleats, the NCAA requires that he must sign a consent form, “giving the [NCAA] and its licensees permission to profit from their image or likeness,” declares Brad Wolverton of The Chronicle of Higher Education. This issue of waiving a player’s rights is currently playing out in the Northern District of California case, O’Bannon v. NCAA. Without the student-athlete having representation through a union, a player lacks the ability to negotiate the terms of his or her athletic contract. DeMaurice Smith proclaims when unfair bargaining procedures are present, such as the case with the NCAA, the actions taken by the Northwestern football players is the “best way for college players to protect their rights.”
Conclusion: Changes Are Possible
To summarize, the NCAA and its member schools’ has an inequitable bargaining chip, as compared to student-athletes, which has produced astronomical profits at the expense of the student-athlete. According to Bloomberg’s Paul Barrett the college sports industry “generat[es] upwards of $8 billion a year from television rights, tickets, and licensing fees.” Although college football is a billion dollar industry, the NCAA has yet to make important changes to its governance system to financially assist its former collegiate football players or to protect its current players through stricter insurance requirements for its member schools. It would be a huge success for CAPA to lobby for these causes and to push the NCAA and its member schools to establish a trust fund for former players with lingering medical issues.
The importance of the Northwestern players’ movement should not be minimized. If CAPA’s members are deemed employees, it is quite possible its movement could be analogous to the effect the concussion suit had on the NFL. The onslaught of litigation brought by former NFL players’ directly impacted changes made to NFL rules and player safety procedures. The NFL has moved kickoffs to the 35-yard line, limited the number of contact practices, made new padding requirements for all players, and mandated that independent neurological consultants be on the sideline during every NFL game. According to the Associated Press, the NFL rule changes lessened concussions by 13% from 2012 to 2013. Thus, even if CAPA is not successful on its case in chief, it will likely create enough media attention to highlight some deficiencies in the NCAA’s regulatory system related to player safety and scholarships.
Since the NFL Players Association backs the Northwestern players’ movement, CAPA could push for changes to the NFL eligibility requirements. According to the NFL Collective Bargaining Agreement, a collegiate athlete has to wait “until three NFL regular seasons have begun and ended following either his graduation from high school or graduation of the class with which he entered high school, whichever is earlier.” Currently, the NFL has the most stringent standard in all of professional sports. Merely lowering the NFL eligibility requirements by one year will impact the future professional careers for many NCAA football players.
In the end, the Northwestern players’ attempt to unionize falls fully on the shoulders of the National Labor Relations Board. CAPA’s largest obstacle is its argument that student-athletes should be classified as employees for the purpose of having a legally authorized collective bargaining union. Based on case law and the National Labor Relations Board’s past judgments this will be a tall order. If it does occur, Kain Colter’s goal “to give players a voice” may come to fruition and the NCAA landscape could be radically changed.