Friday, May 2, 2014
National Labor Relations Board Regional Director Peter Ohr’s decision finding Northwestern University football players satisfied the definition of employees may not stand. The NLRB granted the Chicago university’s appeal April 24, the day before Northwestern football players’ union vote. The secret vote was held, but the results will be released only if the NLRB upholds Ohr’s decision, a process that could take months.
Northwestern, backed by the NCAA, will certainly turn to the federal court system if its appeal fails. The NCAA has an outstanding win/loss record in court and has shown remarkable creativity on this issue. Pulitzer Prize-winning writer Taylor Branch, in a 2011 article in The Atlantic, quotes the NCAA’s first Executive Director Walter Byers’ memoir: “We crafted the term ‘student-athlete’ and it soon was embedded in all the NCAA rules and regulations.” Branch continues, “The term came into play in the 1950s when the widow of Ray Dennison, who had died of a head injury suffered while playing football in Colorado for the Fort Lewis A&M Aggies, filed for workmens-compensation death benefits… The Colorado Supreme Court ultimately agreed with the school’s contention that he was not eligible for benefits since the college was ‘not engaged in the football business.’” The title of Byers’ book is Unsportsmanlike Conduct: Exploiting College Athletes.
Sixty years later few question whether Fort Lewis A&M was ever in “the football business.” But everybody knows that Alabama is. In 2013 the University of Alabama reported $143.3 million in athletic revenues — more than all 30 NHL teams and 25 of 30 NBA teams.
Ohr’s decision goes beyond determining whether the football players met the legal definition of employees: perform services for another (play football generating $235 million for Northwestern between 2003 and 2012), under a contract for hire (scholarship agreement) while under the other’s control (coaches’ oversight and threat of scholarship revocation), for compensation (dollar value of scholarship). The decision’s most interesting and ironic section confirmed the earlier Colorado decision while reversing the effect: Because Northwestern was not in “the football business” the players were employees. In its defense the university cited as a precedent an NLRB ruling that found graduate students who worked as teaching or research assistants could not be employees because their teaching and research were part of and contributed to the university’s mission: education.
Ohr rejected that comparison finding football players are not primarily students based on their 40-60 hour football work weeks (20 hours per week during the offseason) requiring them to alter their class schedules and even change some majors. He also found the players were recruited primarily for their football skills and awarded scholarships on that basis rather than academics. In Ohr’s view a college’s athletics program has no inherent connection to that school’s academic purpose. Since no other country couples a major entertainment enterprise with its higher education system, this aligns Ohr with the majority of world opinion.
So what does it all mean? The NCAA quickly sent out a talking points memo to its members to help us understand. Included were dire predictions: “The negative impact of turning students into employees will be vast. Athletic scholarships will be cut or eliminated. The number of championships will be cut. Smaller sports will lose funding.” Recipients were asked to use the points “as a guide or starting point for sharing your own views.”
Clemson coach Dabo Swinney elaborated as instructed, “We have enough entitlement in this country already. To say these guys get nothing is to devalue education.” NCAA President Mark Emmert opined, “[Unions] would blow up the model of collegiate athletics.”
The model, maybe, but certainly not collegiate athletics; there’s way too much money to be made. College football broke attendance records for the 2013 season after more than 50 million filled the stadiums. And they’re getting larger. Even in Louisiana, after five years of more than $700 million in cuts to higher education, three universities are expanding their stadiums and Tulane is building an entirely new one. (Maybe Ohr could have added that anomaly as another example of the disconnection between colleges and athletics). Meanwhile, 216 million watched regular season games on television and another 127 million viewed the bowl games. The NCAA generates more than $11 billion in annual revenue from college sports, more than the NHL and the NBA.
Accommodations will be made. The NCAA has already picked the absolute lowest hanging fruit by lifting player food restrictions. Athletic administrators need to go further, get past their union phobia and listen to the players’ concerns. At Northwestern those included football time demands that conflicted with academics, research on concussions, assurances that long-term health problems from sports-related injuries will be covered, four-year scholarships and compensation for the full cost of school. Expensive, yes. Excessive, no.
There is some indication the NCAA is listening or attempting to manage the changing playing field. The day before the scheduled union vote at Northwestern the NCAA board of directors gave the five largest conferences more autonomy to address players’ issues. Universities that can afford the extra expenses want to spend the money, as they should. Meanwhile, universities in conferences like the Sun Belt are concerned that after making the financial commitment to achieve a semblance of parity, the NCAA might grant new advantages to the “have-a-lots.”
What should UL do? Exactly what the Cajuns have done over the past three years: win games, fill the stadium and graduate players. And one other thing: Beat Ole Miss.
And all colleges should listen to SEC Commissioner Mike Slive, usually the smartest guy in the gym. He noted that in the past the NCAA’s primary goal was to ensure a level playing field.
Now, Slive says, “Make the primacy of what we do the student-athlete.”
John Mikell believes energy-efficient air conditioning and football are the keys to Louisiana’s future. He lives near Grand Coteau.