Unionization may fail but not a failure

First it was a wildcat strike three months ago by the football players at Grambling University who refused to play a scheduled game against Jackson State in a protest against their training conditions. And now it is Wildcat football players at Northwestern University who have initiated a legal process that could result in the formation of a union for college athletes.

These actions, which would have been unthinkable several years ago, are clear evidence of powerful winds of change in college sports. Yet the Northwestern players face significant and obvious legal obstacles in their quest to form a union.

A series of court decisions in several states over the past 30 years has resulted in a generally accepted rule that college athletes are not employees, cannot collect workers' compensation for injuries and cannot form a union under American labor law.

To succeed in the formation of a union, the players must convince the National Labor Relations Board that they are employees. It will not be easy. In addition to the numerous courts that have ruled that injured athletes are not eligible for medical benefits automatically available to employees, the players will face assertions from Northwestern and the NCAA that they are "student-athletes," a category invented to avoid any suggestion of employment. Their scholarships are "grants-in-aid," not salaries or wages.

"They are paying tuition to attend the university, and they are primarily students," said Zev Eigen, a professor of labor law at Northwestern. "It will be very difficult for them to convince anyone that they are employees."

Even though the university has "significant control over the athletes and is able to tell them when to practice and what uniforms to wear," Eigen said, "they are students first."

Eigen and other labor law experts contacted Tuesday agreed that the players can argue that they face the same levels of control from the university that employees face from their employers, but it will be difficult for the players to convince the NLRB that they are employees who are entitled to the protections of the National Labor Relations Act (the right to strike, the right to check off union dues and the right to collective bargaining).

The players first will make their pitch to a hearing officer of the NLRB in Chicago. If they lose before that hearing office, a likely scenario, they can appeal to the NLRB in Washington (also known as the "big board"). If they lose there, they have a right to appeal to a U.S. Court of Appeals and could file the appeal either in the Seventh Circuit Court of Appeals in Chicago or in the high court in Washington.

If they are unsuccessful in their effort to form a union, the players could consider forming a student association in an attempt to establish bargaining leverage with the university. Since they would have been ruled to be students, they could call themselves, say, the Wildcat Football Association and make their demands known to the university. The players would not have the leverage of a union, but they would have significantly more leverage than they would have as individual players or as members of the offensive or defensive units.

The Northwestern players' initiative comes at a time when the basic structures of the NCAA are being threatened by court decisions, pending legislation and university actions. A bipartisan bill pending in the U.S. House of Representatives would, for example, establish a legal basis for payment of salaries to college players and enact other changes of current NCAA rules. Sponsored by Reps. Joyce Beatty, D-Ohio, and Charles Dent, R-Penn., and numerous others, the bill could become a vehicle that would produce benefits for athletes similar to the benefits that the Northwestern players seek to achieve.

The Northwestern players want better health benefits, better treatment of concussions and future medical treatment. The Beatty-Dent legislation would provide all three benefits and more. Lawsuits against the NCAA moving through the courts seek similar benefits, in addition to compensation for injuries and the use of athletes' likenesses and images.

The wildcat strike at Grambling and the Wildcats' effort to establish a union may not accomplish exactly what the players wanted to accomplish, but actions by the players are part of a historic process that could change the face of college sports.

Whatever decision is made by the NLRB, the action of the Northwestern players in signing the cards asking for a labor union will ripple through the world of college sports for weeks and cause waves of discussion and consideration. Their action will be the prime topic of discussion whenever and wherever other players, coaches, athletic directors, and university presidents and board members gather. Things may never be the same.