THE COLLEGE HILL INDEPENDENT


Student Union

labor organization in the NCAA

by Zeve Sanderson

Illustration by Casey Friedman

published April 4, 2014


Student-athlete. The ordering stresses the primacy of scholastics over sports, and the hyphen suggests they are two parts of an inseparable whole. It’s a celebration of the confluence of academics and sports—the amateur ideal. But the term was not created to simply be a descriptor. Sports economist Andrew Zimbalist argues that it was crafted to help universities “fight against workmen’s compensation insurance claims for injured football players.” His argument has chilling evidence.

     In 1955, Ray Denison played football for Fort Lewis A&M, a junior college in Colorado. On a kickoff against Trinidad State Junior College, he sustained a head injury, and a day and a half later he died in a nearby hospital. In the wake of his death, his widow filed for workmen’s compensation benefits. It seemed to be an innocuous attempt to help support herself, but Ms. Denison’s contention that her husband was an employee of the college had enormous implications. If considered employees, would college athletes be eligible for benefits for all debilitating sports injuries? Would they be granted other rights afforded to employees, like unionization? Understanding these possible ramifications, the school challenged her claim in court, arguing that he wasn’t an employee but instead a “student-athlete.” The case, with Fort Lewis A&M as one of the plaintiffs, ultimately reached the Supreme Court, which ruled he wasn’t an employee because his scholarship didn’t constitute payment and “the college did not receive a direct benefit from the activities, since the college was not in the football business.”

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As sports became more profitable in the past decade, this tension between amateurism and employment re-emerged. Polemics about the broken system have flooded the sports media—“The Shame of College Sports,” “The $6 Billion Heist,” “The Death of College Amateurism,” to name a few. Then, in January of this year, Ramogi Huma, a former UCLA football player; Luke Bonner, a former UMass basetball player; and Kain Colter, a former Northwestern quarterback, formed the College Athletes Players Association (CAPA), a labor rights organization aiming to unionize college athletes. Their stated goals include better injury protection and profit sharing. With the help of the Steelworkers Union, which covered the legal costs, CAPA submitted a petition to the National Labor Relations Board (NLRB) to represent Northwestern scholarship football players.

     Last week, the Chicago Regional NLRB ruled that CAPA was a legitimate union. To meet this standard, players must be “employees” of the University “within the meaning of the National Labor Relations Act.” In an athlete to university dynamic, the NLRA asks for the relationship to be primarily an economic one as opposed to an educational one. CAPA argued that the athletes are at the school to play a sport, for which they are paid in the form of a scholarship and from which the school earns money. Peter Sung Ohr, the director of the Chicago Board who heard the case, agreed.

     The ruling is 24 dizzying pages of minutae. It describes team rules about social media usage, tardiness, and mandatory attire; the schedule of pre-season training camp, in-season practices, and post-season workouts; and expectations for academics, finances, and team culture. The effect is a sense of over-regulation. CAPA members’ admissions to Northwestern were based mostly on athletic performance. They spend 40 to 50 hours a week playing football. They are told which classes they can and cannot take. They are under almost the complete control of the athletic department from enrollment through graduation. They are, in short, athletes first and students second. The University earns a tremendous profit from their performance. In the past decade alone, Northwestern has made $76 million in profit from its football team. It’s hard to argue the University isn’t in the football business.

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This case is important, but its application is limited. The unionization ruling doesn’t apply to walk-ons, who make up a quarter of the Northwestern football team, because they don’t earn scholarships. Walk-ons can’t be employees because they aren’t paid anything.

     In fact, few of Northwestern’s athletes beyond the football team could be considered employees under the recent ruling. There are nineteen varsity teams at Northwestern, but only two—football and men’s basketball—are revenue positive. The other 17 actually lose money and are subsidized by the two profitable teams. Can the relationship between a scholarship athlete in men’s soccer or women’s lacrosse and the University be economic without profits? Within the logic of the ruling, generating clout or status for the University doesn’t amount to an economic relationship—only money does. Ohr’s ruling not only misses a quarter of the football team—it also might not apply to roughly 90 percent of the entire athletic department. It’s not surprising that all three of CAPA’s founders played football or men’s basketball.

     This imbalance is also seen in many of the most prominent economic critiques of college sports. There is historian Taylor Branch’s racial critique—mostly white administrators make money off the hard work of mostly black athletes. sociologist Sarah Michele Ford’s Marxist critique—a system is in place that allows universities and the NCAA to exploit athletes for high profits. Sports journalist Jonathan Mahler’s capitalist critique—athletes aren’t getting their fair share because the market isn’t free. These critiques are all rooted in the disparity between the money made by universities and the lack of pay for athletes. The reality at Northwestern is true for most Division One programs: only football and men’s basketball make more money than they spend. As in Ohr’s ruling, most athletes are left out of the perception of the problem, which means they may be left out of any solutions—even as they face many of the same issues as higher-grossing athletes, like long practice times, limited academic freedom, and team rules that demand their attention on the field first and the classroom second. 

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Ohr has been criticized for his lack of understanding of college football. His descriptions of recruitment, practices, and game days are almost ethnographic, and his rhetoric is sometimes laughable: “While the Employer’s strength and conditioning coaches are allowed to monitor these workouts, various team leaders, including those players on the team leadership council, attempt to ensure that attendance is high at these optional workouts during this and the eight other discretionary weeks throughout the year.” It’s not just that his tone is legalistic; the idea of a captain’s practice—a staple of college sports—seems truly novel to him. 

     Ohr’s distance is what makes his perspective so unusual. Unlike many writers who cover college sports, he doesn’t make any normative claims about college football, maybe because he doesn’t seem to understand it. Unlike Branch and Ford, he doesn’t bring in academic theory. Unlike Mahler, his opinion isn’t rooted in economics. Instead, he considers the National Labor Relationships Act of 1935 and legal precedent.

     On its face, Ohr’s ruling is simply about unions. He looked at the facts of the case and the relevant legal doctrine and made a decision. But beneath his legalism is a radical consideration of the problems facing college sports. His entire decisions rests on a single word: primarily. Are Northwestern football players primarily students or primarily athletes? Is their relationship to the university primarily economic or primarily academic?

     Thus far, critiques of the economics of college sports have focused on how money should be distributed. Branch, Ford, and Mahler have a scale, with the profits of the institutions on one side and the payment for athletes on the other. But Ohr’s scale reformulates the issue. On one side is the athlete’s time commitment to sports; on the other is the quality of the education the athlete receives. This imbalance—between athletic commitment and educational quality—is the root of the problem.

     According to Northwestern and the NCAA, Ohr’s ruling seems to dismiss the educational component of an athlete to university relationship completely. It’s just the opposite. Ohr’s diagnosis of the problem offers a possible solution: shift the balance towards academics, and the athletes are no longer employees.

     The economics won’t go away, and they shouldn’t. A “full” scholarship doesn’t cover the cost of many living expenses (like extra food, simple entertainment, and travel home), and some athletes come from families that can’t provide any economic support. Medical coverage rarely extends beyond graduation, even for injuries with life-long effects. Increasing academic standards would do nothing for these problems, nor would it have done anything for Ray Denison’s widow. Unionization may be an effective response to these issues, but given the ruling’s logic, unionization would be limited to two sports.

     Northwestern will appeal the case to a higher labor board, and if the ruling stands, it will go to the federal courts. Mark Emmert, the President of the NCAA, said the case will eventually reach the Supreme Court. Perhaps they should save themselves the trouble and start fulfilling the balance promised by their beloved term. Student-athlete.

ZEVE SANDERSON B’15 is forming his own union, only for walk-ons.