When students try to unionize, the NLRB also looks at other factors to determine whether they look more like employees than degree seekers. In an important case involving Brown University, the labor board found that graduate students were primarily students and therefore don’t have the right to unionize, as the tasks they’re paid for are closely related to their educational program. Elite college athletes are much different. Unlike grad students, their services on the field are unrelated to their education. Where athletes are concerned, then, the “employee or student” inquiry ends up making the same point as the right-to-control analysis: Elite football and basketball players are primarily (poorly) compensated athletes, not students. (For these same reasons, it’s smart for the unionization movement to begin with the revenue sports. While tennis and soccer players might receive scholarships, in those cases the balance is tilted less toward the athletic side of the ledger. There’s not enough money at stake.)
So the case for calling these football players employees who can collectively bargain through their designated union looks strong, at least when an economic reality test is used. But there are a few caveats.
First, if Northwestern—which has joined the NCAA in opposing the petition, albeit more respectfully—doesn’t like what the NLRB decides, they can appeal through the federal courts. So the process could drag on, and the school can hope that by the time the players win, interest will have waned. If anything, though, it’s likely that the pressure will continue to mount.
Second, the National Labor Relations Act only applies to private employment. So even though a decision in favor of the players would likely inspire their peers at powerhouse private schools like Stanford and Notre Dame to follow suit, it won’t have any direct effect on public schools—by far the majority. Also, many states restrict the collective bargaining rights of their employees, either by removing them completely from entire classes of workers, or by limiting the subjects of negotiation. Don’t expect to see a successful union movement coming from the students at Ole Miss—in general, the South is inhospitable territory for public employee unions. But in the states that do allow their employees this right, the laws governing public employment relations are generally modeled on the NLRA, and are often interpreted so as to be consistent with the NLRB’s decisions. The prospects look bright for students at UCLA, for example, because most state employees in California have the right to bargain collectively.
All of this means that a decision in favor of the Northwestern players will likely explode throughout college football. A tipping point will be reached once enough teams are represented by unions. When that happens, it will be much harder for every school—and the NCAA—to resist meeting players’ reasonable demands, even if players at some universities will be forbidden from unionizing. What elite player will want to attend, say, Oklahoma, if he’s assured of post-career health care at Notre Dame? Top-tier college programs will have to cough up benefits if they want to compete with their football brethren.
If the players win, what’s the end game? They’ll certainly demand real money before long, and it will be hard for universities to make the case that the players are adequately compensated, given the billions of dollars that revenue sports earn for schools, sponsors, and coaches—everyone, that is, but the players. In short, football and basketball won’t disappear if the schools have to pay their players.
But here’s a possible unintended consequence: The success of football and basketball players in earning a long-overdue pay check might be taken out of the hide of athletes that don’t generate revenue, causing sports like wrestling to disappear even faster than they’re vanishing now. Of course, schools can avoid making these hard choices. Instead, they can always do away with some of their pesky academic programs.