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Friday, January 31, 2014

College athletes, unions, and short-term employment

As has been reported, an undisclosed number of  Northwestern football players (Go 'Cats) are trying to unionize (apparently with support of the athletics administration), having signed cards to initiate the NLRB process. Among the group is senior quarterback Kain Colter, who is done playing for NU. And all the other players will leave within 4-5 years, simply by the nature of college and a college football career.

Here is my question: What happens if all the signers leave an employer before the process (both before the NLRB and in federal court) is complete? Is there some sort of mootness doctrine that kicks in with changes in the people who signed cards? Is it overcome by new players joining in? Are there other unionized industries or workplaces that are so concretely and definitively time-limited in the term of employment as would a university and its football team?

Posted by Howard Wasserman on January 31, 2014 at 06:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink

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No idea doctrinally, but does the term-limited nature of the "employment" suggest that it is not in fact employment, but something else?

Posted by: Adam Levitin | Jan 31, 2014 9:31:04 PM

I thought about this. But nothing I've read has said that the definition of employee under the NLRA considers time limits. Would this be like medical residents unionizing? And can they?

Posted by: Howard Wasserman | Jan 31, 2014 11:46:04 PM

As a general matter, I am encouraged by this development. From my remote position as a sports fan and avid ESPN watcher, it seems like college athletes are terribly exploited.

Re: mootness (in the judicial realm), it seems like this would be a "capable of repetition but evading review" type of scenario.

Re: analogs, wasn't there a movement to unionize graduate students not too long ago?

Posted by: Susannah Pollvogt | Feb 1, 2014 10:28:39 AM

Capable of repetition does not apply here, because the repetition must be as to these actual parties, not just that someone else might be injured. So if some (if not all) of these players will no longer be employees by the time the case resolves (and because they exhausted their NCAA eligibility will never again be college-athlete-employees), they cannot be helped by any decision in the case.

Posted by: Howard Wasserman | Feb 1, 2014 11:39:58 AM

I think that is right as to individuals, but if they formed an association with a continuing interest in forming the union, the mootness issue might play out differently. Individual players who have graduated would not be helped, true, but that would not moot all claims. I was thinking of something along the lines of Roe v. Ogden, a case I was involved in as an attorney a long time ago. (It was a challenge by law students to the practice of the Colorado Supreme Court inquiring into mental health and substance abuse treatment in connection with bar admission.)

Posted by: Susannah Pollvogt | Feb 1, 2014 11:59:55 AM

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