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IU experts: NLRB college football ruling a potential game changer

• March 26, 2014

FOR IMMEDIATE RELEASE

Indiana University experts in sport communication and marketing and in labor law react to the ruling by the National Labor Relations Board that football players at Northwestern University are employees and have the right to form a union. They discuss the following issues:

A potential game changer for college athletics model
If upheld, decision could raise Title IX questions

A potential game changer for college athletics model

Galen Clavio, a sports communication and marketing expert at Indiana University, described the ruling by the National Labor Relations Board allowing Northwestern University football players to unionize "potentially a game changer."

“This ruling is potentially a game changer for the college athletics model as a whole. The primary things that the National Labor Relations Board ruled were that the football players at Northwestern were not 'primarily students'; that their football coaches exercised strict control over their schedules; and that their athletic scholarships were, in effect, compensation in exchange for work at school, with the work in this case being their football duties. This was a bit of a surprise ruling, as many in the legal profession thought that the players were going to lose this ruling.

“Northwestern has already announced that they are going to appeal, so there is still more to come in this case. But this is a major step toward a change in the way college athletics is treated by the courts and could lead to a system where football players -- and potentially other college athletes -- could form their own unions and collectively bargain with college athletic departments on a range of issues, from salary to health benefits to other items.”

Clavio is an assistant professor in the Department of Kinesiology in the IU School of Public Health-Bloomington. He can be reached at gclavio2@indiana.edu or 812-855-3367. For additional assistance, contact Tracy James at 812-855-0084 or traljame@iu.edu. Top

If upheld, decision could raise Title IX questions

Kenneth Dau-Schmidt, a professor and labor law expert at the Indiana University Maurer School of Law, said it appears the ruling may "have legs" under the law. Although Northwestern has indicated it will appeal, he believes there's a good chance the entire NLRB and perhaps even the 7th U.S. Circuit Court of Appeals will confirm the decision.

"The definition of 'employee' under the National Labor Relations Act is fairly broad," Dau-Schmidt said. "There are exceptions, but none of them apply to this case. There is a prior decision that university research assistants and teaching assistants are not employees under the NLRB, but that decision is very weak and can be distinguished because there the activity was part of the student’s educational program. The football players are directed to perform for the benefit of the university and receive compensation in the form of scholarships and stipends, so there is a pretty good argument they are employees for the purposes of the act."

Dau-Schmidt said it's important to note, however, that athletes at public universities would not be covered by the National Labor Relations Act. State employees are governed by state law, not the federal labor act. In Indiana, the general rule is that it is a criminal act for state employees to collectively bargain, although university employees are exempted from this prohibition and teachers, police and firefighters have separate statutes.

"Under Indiana common law, a public university would have no obligation to negotiate with its athletes; but if they did sign an agreement, it would be enforceable," he said. "From a practical perspective, if private universities began giving student athletes better insurance or stipends as a result of collective bargaining, public universities would have to follow suit to compete for athletes. Some of the money that now goes to pay large coaches’ salaries might go instead to pay for medical of disability insurance for college athletes."

If this decision is upheld and college football players at private universities begin to organize, Dau-Schmidt added, there is a good question of how this system would work consistently with the Title IX requirement of equal athletic opportunities for women.

"Where there is a positive cash flow in college athletics, it's usually associated with men’s football and basketball, not other sports. At the bigger schools, men’s football and basketball revenue supports the other athletic programs. Would Title IX mean that the football players have to negotiate benefits for all athletes and not just themselves? That would make for a very curious system of collective bargaining."

Dau-Schmidt is the Willard and Margaret Carr Professor of Labor and Employment Law at the IU Maurer School of Law. He can be reached at 812-855-0697 or kdauschm@indiana.edu. For additional assistance, contact Steve Hinnefeld at 812-856-3488, 812-361-2121 or slhinnef@iu.edu. Top