NLRB decision very well-reasoned

The regional director of the National Labor Relations Board in Chicago, Peter Sung Ohr, ruled Wednesday that Northwestern University football players are university employees and entitled to an election that will determine whether they can form a union. The blockbuster ruling and Ohr's reasoning raise significant legal questions:

Q: What is the basis that college athletes are employees and entitled to form a union?

A: Ohr based his conclusion primarily on the enormous revenue and benefit that result from the efforts of the Northwestern football players and on the rigorous control that Wildcats coaches have over the lives of the scholarship athletes. The first thing that Ohr mentioned as he began to explain his decision was that Northwestern enjoyed football revenue of $235 million over the nine years between 2003 and 2012. Clearly impressed with that enormous income, Ohr explained somewhat unnecessarily that the university could use this "economic benefit" in "any manner it chose." It wasn't just the money, though, Ohr added. There is also the "great benefit" of the "immeasurable positive impact to Northwestern's reputation a winning football team may have." (Ohr did not mention NU's seven-game losing streak at the end of the past season.)

Ohr also was impressed with the hour-by-hour, day-by-day control that the coaching staff has over players' lives. He devoted more than 10 pages of his 24-page opinion to a detailed description of practice schedules, workout requirements and coaches' supervision, including approval of living arrangements, registration of automobiles, control of the use of social media (a player must be connected to a coach), dress codes, restrictions on off-campus travel and demanding study schedules. It was the kind of control, Ohr concluded, that an employer has over an employee, not the kind of control a school has over a student.

Q: What is the significance of Ohr's ruling?

A: The decision is highly significant. Although it will be reviewed and appealed, it is a historic first step in a process that, together with litigation against the NCAA and legislation in Congress, could change the face of college sports. If the decision is upheld, it will give players at private universities a voice in the management of their lives as athletes and students. It will qualify players for workers' compensation benefits for injuries that occur during their playing careers, benefits that will cover them well into their futures. Instead of coaches issuing schedules and setting rules for their private lives, the players and their union will bargain for their working conditions in the same way NFL and MLB players bargain for benefits. And, although the Northwestern players say they are not interested in payments for their efforts, the formation of a players' union will open the way to salaries for athletes in football and men's basketball.

Q: Is the ruling a surprise?

A: Yes. When the Northwestern players stunned their coaches and their university with their petition to form a union in February, most observers agreed that the players had little chance of success. The idea of a collegiate athletic union was inconceivable to many involved in college sports. But the leader of the players, Kain Colter, and a legal team assisted by the United Steelworkers, presented a compelling picture of the daily regimen of Northwestern football players, convincing Ohr that they were workers and employees and not primarily students.

Instead of the mythical amateur athlete playing for the love and glory of the game, Ohr saw workers in a huge commercial enterprise who were already being paid for their service in the form of scholarship, workers who were dependent on their employer (the university) and were, therefore, entitled to form a union. For those in authority in college athletics who feel that players should simply be grateful for the opportunity to play, the ruling is a shocking and revolting development. But it may be a look at the future of college sports.

Q: Northwestern plans to appeal the ruling. Can the university win its appeal?

A: In its detailed presentation of the life of a Northwestern football player and in its analysis of the applicable law, Ohr's opinion clearly anticipates the appeal. It will be difficult for Northwestern to make any significant changes or amendment to Ohr's descriptions of the enormous commercial value of the players' work and the demands placed on a player.

It will also be difficult for Northwestern to find legal precedents that will help it in its appeal. The critical precedent is a case involving Brown University and decided in 2004. Northwestern argued that that case's ruling that graduate assistant instructors were students and not employees was the rule that governed the football players' situation. But Ohr, in an impressive bit of scholarship, explains in detail why Northwestern is wrong and why the Brown ruling does not apply to scholarship athletes.

Northwestern will have a difficult time convincing the labor board in Washington that Ohr was wrong. In addition, Northwestern will be up against three members of the board recently appointed by President Barack Obama who are likely to lean in the direction of the union and against the university.

Q: What impact does the decision have on public universities?

A: None. The decision in the Northwestern case affects only private universities. Any attempt by players to form a union at, say, Ohio State, or Nebraska, would be governed by the specific state's laws on unions of public employees (teachers, firefighters, police.) It is different in each state. But there would seem to be little doubt that athletes at these public schools will be watching what happens to determine whether they want to do something similar. Large public employee unions like the SEIU or AFSCME may be willing to help these athletes in the same way the United Steelworkers helped Colter and the Northwestern players.