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Sunday, April 06, 2014

Unions, incentives, and change

In March, the regional director of the Chicago office of the National Labor Relations Board ruled that football players at Northwestern University were employees, entitled to form a union and to collectively bargain with the university over conditions. That vote is scheduled for April 25, although the votes would be impounded if, as expected, Northwestern appeals the decision to the full NLRB. Yesterday, Northwestern football coach Pat Fitzgerald publicly urged his players to vote against forming a union in a letter sent to players and their families. And at least a few players seem inclined to vote against it, at least based on quotations in the story.

What is interesting is the near-universal sense from everyone that things do need to change in college football in terms of benefits, hours, health care, and other conditions for student-athletes.--all the things supporters want to get through the union and collective bargaining. The dispute is over how those changes will or should occur. One player pointed to Fitzgerald and his activities with the American College Football Association (he is on the association's Board of Trustees); another said he hopes the NCAA will see the need for change. But what would cause anyone to believe either of those groups (or any other non-player group) is likely to act in the players' interests. Football coaches are control freaks (I say that as a control freak myself) who would see that control threatened by many of the changes the players might want. How likely is ACFA to support tighter limits on football hours--so players can spend more time being students--or tighter limits on contact practices--so players are subject to fewer hits? The NCAA is a dysfunctional organization that has never shown any inclination to truly protect and benefit players, especially when the changes transfer from it and its schools to the players. This is not an institution likely to change unilaterally or from within. Especially since the NCAA, conferences, and schools make massive amounts of money off football and men's basketball and may make less money if the system changes.

Importantly, none of these organizations is structured or legally obligated to take player interests into account or even to hear their concerns. All the unfortunate anti-union sentiment in the United States obscures the real benefit of the NLRA and a union in this situation--the rules regarding the terms and conditions under which the players operate can only be made with consent from the players. Absent a union, the players are left hoping that someone else--ACFA, the NCAA, the Big Ten/Twelve, Northwestern--will deign to give them what they want or need. In other words, change comes because the same powers that be decide to throw the players a bone via the same paternalistic arrangements. Moreover, since Northwestern must follow NCAA regulations (as a condition of membership and maintaining eligibility of its teams), the only source of change really is the NCAA.

I thought of similar issues surrounding the union in doing an interview regarding this joint study by the Student Press Law Center and a journalism class at the University of Maryland (I am quoted in the report itself). The report describes some of the policies to which student-athletes are subject (either by the university, the athletic department, or the team) regarding social media and other speech activities; social, dating, and sexual activities; and privacy. For example, the University of Georgia men's basketball team has policies regarding monogamy (good) and visible hickeys (bad) and reserving the right to inspect a player's dorm room at any time. Obviously these policies would be unconstitutional as applied to an ordinary student at the University of Georgia. They probably are not much more constitutionally valid as applied to student-athletes--much depends on whether the court views student-athletes as akin to employees and thus subject to the tighter speech and conduct restrictions that government can impose on its employees. Of course, one still could argue that these policies are over the top even in that situation--seriously, telling a student-athlete how many girlfriends he can have or that he cannot use "offensive language" (whatever that means) on Twitter?

Of course, we never will find out whether these policies and rules are constitutionally valid because no player is ever going to challenge them in court, for fear of retribution from the powerful and in-control coach. Collective action eliminates that problem--the coach is not going to kick everyone off the team for objecting to these sorts of unconstitutional and offensive rules. Only the group, not the lone player, can resist the greater power of the coach, the school, and the NCAA.

Posted by Howard Wasserman on April 6, 2014 at 01:25 PM in Employment and Labor Law, Howard Wasserman, Sports | Permalink


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Your point about how those who benefit from the current system of college athletics are the same as the scamblog critics of law school faculty and deans.

Posted by: PaulB | Apr 8, 2014 10:48:45 AM

I couldn't agree more. It's disgusting seeing these old men -- football coaches, athletic directors, the head of of the NCAA -- all of whom earn very high salaries wax, poetic about the purity of the student-athlete "system" and how it would be destroyed by introducing filthy lucre.

Maybe they'd all like to work for scholarships?

Posted by: Brad | Apr 7, 2014 9:56:14 AM

Howard, I completely agree with you. Listening to Donna Shalala on NPR the other day, defending the status quo, made me sick to my stomach. In fact, for years --and by that I mean since I was a college student almost 30 years ago when the NCAA enacted Prop. 48-- I've thought that what the NCAA has done and continues to do is unconscionable. The only thing that amazes me is how long it took for the country to finally have a serious conversation about it. I've watched college sports since I was a kid --the first NCAA basketball championship that I recall watching on TV was when Kentucky beat Duke, I think, a few years before Magic's Michigan State beat Bird's Indiana State-- but I've never felt so nostalgic about college sports that I've been blinded by the fact that it's a multi-billion dollar business and the athletes in certain sports are much more employees than they are students. That's beyond dispute.

I could go on and on but I'll leave it at that. Needless to say, I appreciated your post, Howard.

Posted by: Ronald C. Den Otter | Apr 6, 2014 3:16:38 PM

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