Kain Colter is a senior at Northwestern University, a pre-med student majoring in psychology with a 3.1 GPA. For the past two years, he has also been the starting quarterback for the university’s football team, where he has shown himself to be a real leader and, in the words of his academic adviser, “a wonderful example of a true student-athlete.”
One of the classes he took at Northwestern was about the modern workplace. “We were talking about unions,” he recalls. “About the steelworkers’ union, and the professional sports unions. And the teacher said it was too bad you guys don’t have the kind of protections a union can negotiate.” By “you guys,” of course, the professor meant college athletes. The light bulb went on in Colter’s head.
As an illustration of the power of an education, this story is downright heartwarming. But it could be a lot more. There is at least a chance — one doesn’t want to get too carried away at this early stage — that it could wind up triggering a momentous change in the way big-time college athletics operates. On Tuesday, Colter and the majority of his teammates petitioned the National Labor Relations Board for the right to form a union.
Does a union for college athletes seem far-fetched? If it does, that’s in large part because the NCAA has done such a good job over the decades of convincing America — and the courts — that because the athletes are students, they can’t possibly also be employees.
The phrase “student-athlete” was, in fact, dreamed up in the 1950s by then-NCAA President Walter Byers, after it appeared that injured athletes in several states might be allowed to get workers’ compensation. The phrase, write Nicholas Fram and T. Ward Frampton in an article in the Buffalo Law Review, was meant to “obfuscate the nature of the legal relationship at the heart of a growing commercial enterprise.”
Today, that commercial enterprise brings in not millions of dollars but billions. Yet the players not only don’t participate in the spoils, they have no voice at all. “Players need to know that they will be taken care of if they are injured,” said Ramogi Huma, president of the National College Players Association, which is aiding the Northwestern effort. Guaranteed medical care is one of a number of issues that Huma thinks a union could help ensure.
The ultimate example, noted Huma, is the controversy over concussions. “It is terrifying to think of the damage concussions can do, and see the NCAA avoiding responsibility, while the NFLPA has been making progress,” he said. (The National Football League Players Association is the union for professional football players.) Indeed, in a recent court filing in a concussion lawsuit, the NCAA’s lawyers wrote that “the NCAA denies that it has a legal duty to protect student-athletes.”
It’s worth nothing that neither Colter nor Huma is advocating that the players get paid a salary. “What we want is a seat at the table,” Huma said. What college athletes need, more than money, is an organization that will push back against the all-powerful NCAA and their own athletic departments, which are so quick to throw their players under the bus at the first hint of a problem.
The question the NLRB will have to grapple with is whether college athletes meet the criteria required to be labeled as employees. In their law review article, Fram and Frampton make the case that they do. The labor board, they note, defines employees as any “person who works for another in return for financial or other compensation.” College athletes are compensated with a scholarship. They are also beholden to a coach who — to use the board’s language again — “has the power to control and direct the employees in the material details of how the work is performed.”
Still, Fram and Frampton note that the NLRB hasn’t exactly shined in recent years. Scholars, they write, have described the board as being “largely ineffective.” In the case of another class of student workers — graduate assistants — the board wound up ruling that they did not meet the definition of employee. (Yes, there are some graduate assistants’ unions. But they were formed mostly without the help of the NLRB.) Clearly, forming a union of college athletes will be an uphill struggle.
I always thought that the idea of a union for college players was unlikely, but not for legal reasons. Athletes enroll in universities when they are 18 or 19 years old. Their careers lie ahead of them. They don’t want to do anything that might cause them to be viewed as troublemakers. Even after they realize the way the system is stacked against them, they fear retaliation should they speak up. For that reason, I assumed they would never take that first step, I thought.
Sometimes it’s nice to be proved wrong.
Joe Nocera is a columnist for The New York Times.
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