The Time Is Now: A Calling For All College Football Players
In 2015, the National Labor Relations Board (“NLRB”) (“the Board”) dismissed a petition by Northwestern University’s football team players to unionize.[1] In a unanimous decision, the five-member board declined to assert jurisdiction over the case, stating that it “would not serve to promote stability in labor relations.”[2] Their multi-faceted reasoning, however, was only in part due to the lack of precedent regarding student-athletes.[3] The Board’s main contention was that “even if scholarship players were regarded as analogous to players for professional sports teams who are considered employees for purposes of collective bargaining, such bargaining has never involved a bargaining unit consisting of a single team’s players.”[4] In all of its prior cases involving professional sports, the NLRB recognized that it was able to regulate “all, or at least most, of the teams in the league or association” at issue.[5] However in stark contrast, if the NLRB were to grant union status to just the Northwestern University football team, it would have been unable to effectuate much change. This is because the Board cannot exercise jurisdiction over any of the other competitors within Northwestern’s conference. According to Section 2(2) of the National Labor Relations Act (“NLRA”) (“the Act”), the NLRB is not authorized to assert jurisdiction over any state-run college and/or university.[6] Public institutions are not operated by “employers” within the meaning of the Act. This is notable, because Northwestern is the only private school that is a member of the Big Ten Conference. But what is even more significant, is that 108 of the 125 NCAA Division I Football Bowl Subdivision (“FBS”) teams in college football are public schools.[7] Nevertheless, the NLRB did not completely slam the case shut. In fact, the Board’s opinion only addresses the petition filed by the Northwestern University football players.[8] Hence, the NLRB never directly answered the question of whether scholarship football players for a Division I FBS private sector college, should be defined as “employees” under the Act.[9] This leaves open the possibility for future reconsideration by the Board. Moreover, since that decision, the NLRB’s General Counsel has indicated that collegiate athletes might very be well considered “employees” within the meaning of the Act.[10] This coincides with the Board’s previous statement, which suggested that a different approach might be taken by them, if a new petition consisted of “all FBS scholarship players (or at least those at private colleges and universities).”[11] Thus far, however, no such petition has surfaced. Rather, after the 2015 NLRB decision, most college presidents were quoted saying that the NLRB made the right decision.[12] The onus is truly on the players to force the change; and keeping issues of health and safety protocols, as well as eligibility, at the forefront of their demands, might be the way to do it.[13] This brings us to the year 2020.
If 2020 has taught us anything at all, perhaps its biggest lesson is that social media and technology have enabled groups of people from all over the world to galvanize at unprecedented rates. Look no further than college football to see evidence of this on full display. Amid the COVID-19 pandemic, the Power Five conferences contemplated postponing the upcoming season. This spurred controversy, and a band of the sport’s most recognizable athletes from across the country held a 30-minute emergency Zoom call[14] to voice their concerns. The end result of that Zoom call was monumental. In just one night, college football players flooded Twitter, issuing the same statement #WeWantToPlay in a tweet that trended No. 1 in the United States.[15] This midnight phenomenon placed pressure on the Power Five conferences. Shortly thereafter, the SEC, the ACC, and the Big 12 all announced their intentions to continue to play football this fall.[16] Meanwhile, the other two conferences, the Big Ten and the Pac-12, are likely set to play in the spring.[17] However, even that decision has been met with resistance. Ohio State quarterback Justin Fields continues to lobby the Big Ten, and in doing so, has rallied together over 230,000 signatures to petition the Big Ten to play.[18] Clearly, these student-athletes have tremendous power to make their voices heard. The NCAA is almost forced to respond when they press concerns about health and safety. But why haven’t athletes utilized this power as much before? Lisa Pike Masteralexis, senior associate dean for the Isenberg School of Management at University of Massachusetts Amherst, offers two main justifications;[19] she states, “[f]irst, student athletes are short on time and are focused on their season and getting drafted [and] [s]econd, turnover is high from year to year as student athletes are drafted or graduate.”[20] This is true, student-athletes have a pretty full plate with school and preparing for their professional careers. It’s easy to see how they might not find the additional time to make an attempt to unionize in the process. But with the prospect of potentially not having a football season, the COVID-19 pandemic might just have been the spark to ignite a joint effort amongst these athletes. Never before has the NCAA been more exposed, due to the obvious lack of player representation. It is now more clear than ever, that a relationship like the one NFL players have with the National Football Players’ Association[21] is needed at the collegiate level. But who should that voice be? A bit under the radar, the National College Players Association (“NCPA”) has actually attempted to be it for quite some time.[22] The NCPA is a non-profit advocacy group that has played an instrumental role in the recent bills passed allowing student-athletes to be financially compensated for use of their name, image and likeness in certain states.[23] The NCPA also backed the failed attempt for the Northwestern football players’ union movement in 2015.[24] But even more recent, they announced a partnership with the NFLPA to “explore opportunities” for college athletes in group licensing, which seems to be a step in the right direction.[25]
Therefore, it’s possible that the NCPA simply backed the wrong horse in 2015. Since most FBS teams are created by state institutions, some may be subject to state labor laws that are different from others. That is a huge obstacle to overcome. But if that fact presents such an issue, why not just bypass that hurdle entirely? This is one of the positions that sports lawyer and law professor Marc Edelman thinks might be a viable option to increase player benefits. Although it lacks the command a union would present, Professor Edelman still recalls a time “during the period of the late 1980s and early 1990s after the NFL players had voluntarily decertified their union, a non-union trade association also going by the name National Football League Players Association was still able to successfully organize and use antitrust lawsuits and other tactical pressure to secure certain changes to the way professional football operates.”[26] Perhaps it’s time for the National College Players Association to emulate that model and step into the role as the official non-union trade association for college football players. With the increase in leverage, the NCPA might be better positioned to develop the more nuanced argument, which labels their college athletes as joint employees,[27] to again present in front of the Board. The NLRB certainly seems up to the challenge, and with experience and momentum already on their side, a full backing from the players would be a great start to creating an even more formal organization.[28] In turn, the players will have at least a bit more of a “useful pressure tactic”[29] to force the NCAA to the bargaining table–but to facilitate it, will require a lot more organizing, hashtags, and Zoom calls from some of college football’s biggest stars.
Footnotes
