The most vocal debate about college athletes and employment revolves around whether they should be paid, but there are equally important issues that just don’t get as much coverage. A recent memorandum sent by the National Labor Review Board (NLRB)―the government agency tasked with enforcing labor laws―has affirmed that “scholarship athletes” at private universities are employees under federal statute. This marks a large but fragile victory in a decades long battle for the rights of student athletes. The case in question involves certain provisions in the Northwestern University football team’s rulebook which restricted what players could communicate over social media and to the press.
Athletes’ rights advocates claimed that these restrictions violated federal labor law, which prompted an investigation by the NLRB. Although the NLRB had ruled in 2015 that the team did not explicitly have the right to unionize, a recent memo points towards the board’s more inclusive understanding of what constitutes employment at universities. If a similar case involving the unionization of a college team comes before the NLRB and they act in line with positions expressed in the memorandum, the entire college sports industry could change. This decision is part of a larger movement within the NLRB that has expanded the definition of university employees, most recently in the case of graduate TAs who, like student athletes, occupy the position of both students and workers in the university. However, several factors could prevent student athletes from going the way of TAs, including the financial interests of the NCAA and the influence of the Trump administration.
To really understand this story, it’s important to get a little background on the NLRB, which was established in 1935 to enforce the provisions of National Labor Relations Act. These include the rights of workers to form and join unions as well as the obligation of employers to recognize and bargain collectively with unions. In its first few years, the NLRB proved tremendously successful at settling labor disputes, so much so, in fact, that it attracted the ire of many employers and members of congress. In 1947, the Taft-Hartley Act effectively declawed the Board of the NLRB, and diluted its responsibilities diluted through the creation of new positions. The Landrum-Griffin Act passed in 1959 returned some powers to the NLRB, but its decisions and the political leanings of its board continue to be a subject of scrutiny.
The NLRB has recently produced several controversial decisions involving the definition of employment that could be bellwethers for the future of student athletes. In one case at Columbia, the NLRB ruled in August of 2016 that graduate students who acted as teaching or research assistants qualify as employees under the National Labor Relations Act and so have the right to unionize and collectively bargain with their university. This decision applies to graduate students at all private universities and was a reversal of the precedent set in a 2004 case involving graduate students at Brown University. In the Brown case, the NLRB held that graduate teaching and research assistants had a “primarily educational, not economic, relationship with their university.” Despite an amicus brief filed by nine prominent research universities, including Brown, Harvard, MIT, Stanford and Yale, the NLRB reversed its position and concluded that graduate students have the full rights of employees under federal law.
College athletes looking to unionize face an uphill battle, against the economic and political powers of both the NCAA and the President of the United States. Both are powerful forces with entrenched interests that oppose the unionization of athletes.
In a case at Yale in January of 2017, the NLRB further demonstrated how far it is willing to go to enforce compliance with its decision. The issue lay in how graduate students should vote to decide to unionize. The NLRB ultimately sided with Local 33―the unofficial graduate student union at Yale―and allowed graduate students to vote in the nine departments that had the strongest support for unionization amid protest from the university that such voting is “insufficiently democratic.” If decisions such as these come to apply to student athletes, it would have huge effects on the balance of power and economic interests at private universities. And with the NLRB’s current stance, that very well could happen. However, several large factors stand in the way of this change.
The first is the NCAA: the governing body of intercollegiate sports. Between television rights, marketing and merchandise, the NCAA is tremendously profitable. In 2014, the organization reported nearly one billion dollars in revenue. Currently, most of that money goes to member schools and conferences. The financial success of the NCAA is entirely contingent upon the unpaid work of over 400,000 athletes. The NCAA makes a particular point of emphasizing the amateur status of its athletes in its extensive eligibility requirements to assuage even the notion of athletes being paid to compete. As long as the NCAA can ensure that student athletes are seen as purely amateur, it has no obligation to pay them and essentially forfeit a significant portion of its revenue. Under the current arrangement, the NCAA has a huge financial incentive to reject the idea that student athletes are employees, so it also has no incentive to support its athletes unionizing.
The second is the Trump administration. Of the five-member board of the NLRB, Trump will be able to fill two currently empty spots and third that opens up this year at the end of the term of the current acting chair. The terms of the final two board members expire in 2018 and 2019, so Trump could have the ability to appoint the entirety of the board of the NLRB. This decision will likely be informed by both political and personal interests of the President. Inevitably, Trump will appoint a Republican majority on the board. However, Trump also stands to benefit personally from a conservative NLRB that is unfriendly to organized labor; labor disputes at his hotels fall under the jurisdiction of the NLRB. The President has run into trouble with the NLRB before: he fought the board’s decision to allow workers at the Trump International Hotel in Las Vegas join the Culinary Workers’ Union. Although it might present a conflict of interest for the President to appoint the members of a board that adjudicate cases involving his businesses, such accusations haven’t stopped the President yet.
College athletes looking to unionize face an uphill battle, against the economic and political powers of both the NCAA and the President of the United States. Both are powerful forces with entrenched interests that oppose the unionization of athletes. Graduate students also face an uncertain future; another ruling by a very different NLRB could undo years of progress. The President’s distaste for the NLRB combined with the organization’s volatile history could result in the regression of enforcement of labor laws nationwide. The future seems bleak in the battle for the rights of student athletes, but the fight is an old one, and it will continue.