Of unions and dictators: A better way forward

by Elizabeth Brightwell, Ashley Badesch, and Kyle Schnoebelen

Many glorify the life of collegiate student-athletes. The gear, the travel, the coaching, the trainers and all of the other resources available to student-athletes contribute to this perception. These benefits, however, come at a cost largely ignored by the viewing public. Student-athletes wake up before the sun and, all day, shuttle between the athletic fields and the classroom. Bruised and exhausted, they ignore bodily demands and stay up late to avoid falling behind in the classroom. The demands on athletes, especially in revenue sports, are extremely high. Throughout their collegiate career, student-athletes lose control of their schedule and their bodies; this loss of autonomy is often startling. And when it comes to policy, many student-athletes feel powerless in their efforts to express dissatisfaction or have their voices heard. Under the control the NCAA, and more immediately, their educational institution and coaches, student-athletes operate, almost 24-hours a day, as part of a system in which the power of their voice does not match their contribution.

In January of 2014, Kain Colter, the former quarterback of Northwestern University’s football team, joined forces with Ramogi Huma, a former college football player from UCLA, and Luke Bonner, a former college basketball player, to address this discrepancy. Colter, Huma and Bonner formed the College Athletes Player Association (CAPA) in hopes of providing a collective voice for student athlete concerns, enabling them to more effectively bargain with the NCAA and their institutions in pursuit of comprehensive reform. CAPA’s demands have been radically misrepresented in the media. Their list of demands does not include pay for play; instead, the union’s specific demands—notably improved health coverage provisions and expanded academic support—could be accomplished through a formal voice in NCAA policymaking.

In order to more effectively bargain for these demands, CAPA decided to unionize. Kain Colter submitted a petition to the region’s National Labor Relations Board (NLRB), seeking to recognize student athletes as employees, thereby making it possible for them to form a union. On March 26th, the Regional Director of the NLRB, Peter Ohr,decided that Northwestern student athletes did, in fact, qualify as employees, noting that football players devote as much as 40-50 hours a week to football related activities in spite of an NCAA policy that ostensibly limits players to 20 hours a week.

This decision had already been challenged; on April 6th, Northwestern University submitted a request for review to the NLRB in Washington, moving this regional decision to the national stage. By April 16th, CAPA must submit its own brief as the NLRB decides whether or not to review the case. The NCAA President, Mark Emmert, publically stated his expectation that the decision will ultimately make it all the way to the Supreme Court.

In the meantime, Colter will need to win a majority vote of current Northwestern players in order to unionize, and a secret ballot election is slated for April 25th. Both the NCAA and the Northwestern football coach, Pat Fitzgerald, have urged the athletes to vote against the union, citing the inevitable demise of amateur college athletics as we know it. CAPA is gaining momentum, however, garnering media attention and support from prominent voices. On April 8th, the NFL Players Union stated its support for Colter and the union, urging student athletes to “stand behind, support, and be proud of a young man who decided not to just shut up and play.” Tensions continue to run high as the parties spar through the media. NCAA President, Mark Emmert, called the union“ridiculous” and “a grossly inappropriate solution.” Colter countered by likening the NCAA to a “dictatorship.”

Despite the posturing and heated rhetoric, the unionization dispute is ripe for negotiated agreement because the alternative available to each side in the absence of an agreement is so unappealing. For the players, even with the legal go-ahead, unionization is no sure thing. Northwestern University and its football coach, Pat Fitzgerald, are urging their student-athletes to vote against the union, and several players have already spoken out against the effort. If the players do vote to unionize, moving forward with unionization would present myriad complications. Simply negotiating a labor contract would take a large amount of time and money, and players would likely end up trading the ease of current benefit structures for the challenge of managing a paycheck themselves, taxes and all. Additionally, different legal frameworks would apply to unionization effort both at public universities (in many states, it is harder for state employees to unionize) and at universities in ‘right to work’ states, where unions would be a non-starter. These disparities could create an unwanted discrepancy in athlete benefits and ‘compensation’ across universities.

For the NCAA, a continued trend towards unionization would mean increased legal fees and—more importantly—negative publicity at a time when many are alreadyquestioning the very legitimacy of the NCAA competition and the efficacy of amateurism in student athletics. In his ruling that Northwestern football players qualify as employees, NLRB ruling Regional Director, Peter Ohr, includes an expose of the demands placed on football players that makes a mockery of the NCAA’s claim that student athletes are “primarily students.” Simply put, the NCAA has a real interest in limiting the amount of public attention and close scrutiny their amateurism policies receive.

While the list of demands put forth by CAPA reveals a number of important problems that merit discussion, the overarching issue is that the current governance structure completely ignores the views of arguably the most important stakeholders- the athletes themselves. “No one represents us in negotiations,” explained Colter. “The only way things are going to change is if players have a union.” A union, however, may not be the only way, or the best way, to achieve many of the CAPA’s stated goals.

Thus far reaching a satisfactory resolution for all parties has been made difficult because the focus on “union” or “no union,” and the sanctimonious NCAA rhetoric regarding ‘the purity of amateur competition’ has obfuscated the central issue of lack of student voice in the governance of college athletics. While the NCAA has attempted to concentrate the debate on whether college athletes should get pay-for-play (which is not actually one of CAPA’s demands) and a zero-sum-game outlook (the pure ideals of amateurism vs. a semi-professional farm system), the student athletes’ focus on unionization overlooks potential solutions that address their concerns without the fallout that would accompany obliteration of the current student-athlete paradigm.

Both sides have an interest in maintaining the foundations of the current amateurism model—in which athletes are not employees—while increasing the athlete’s role in NCAA policymaking commensurate with their contributions. A negotiated deal that includes dissolution of the unionization effort in exchange for giving student athletes more voice within the NCAA through voting membership on the Board of Directors, while meeting the most pressing and intuitive demands put forth by CAPA concerning academics and healthcare would, in theory, be preferable to both parties.

Many of CAPA’s demands are already met by some NCAA member institutions, but have not been codified or mandated by the organization. The Northwestern effort was not a response to mistreatment by the school, specifically, but an effort to address the concerns of NCAA athletes across institutions. “We’re interested in trying to help all players – at USC, Stanford, Oklahoma State, everywhere,” Colter recently told ESPN. “It’s about protecting them and future generations to come.”

In a negotiated settlement, imminent concerns regarding player health and safety should be immediately addressed. In accordance with CAPA’s requests, the NCAA should establish and enforce uniform safety guidelines in all sports to help prevent serious injury and avoidable deaths. The NCAA should agree to do all that they can to minimize brain trauma risks, immediately limiting contact in practice by adopting the CARE plan and mandating that all member institutions cover sports-related medical expenses, as some already do. It should meet another of CAPA’s demands— formally prohibiting schools from revoking scholarships for subsequent years due to injury.

Additionally, the NCAA should immediately address concerns regarding the academic concerns of student athletes. The NCAA should protect educational opportunities for student-athletes in good standing. This would mean that college athletes of all sports would have the ability to transfer one time without punishment, and would be granted an athletic release from their university if they wish to transfer schools.

In addition to meeting most of CAPA’s demands, however, a successful negotiated agreement would need to address the core issue— a lack of a student-athlete voice in decision-making.  The NCAA should welcome 6 student athletes to its 18-member Board of Directors in voting positions. The universities from which the students are elected (all student athletes at a selected school could vote) should be selected from a lottery system amongst Division 1 member schools every two years. Addressing this structural issue would create a forum in which student athletes have a formal say in deciding the issues that most directly affect their lives, eliminating the need for student-athletes to pursue their interests through unionization. For the NCAA, such an agreement would represent a significant shift, but also accomplish their most important goals: maintaining the current amateurism paradigm and limiting potential alternatives to NCAA competition.

For the student athletes, these governing positions will create a say in all issues of governance in the future, creating a framework in which the contentious issues left unaddressed in this agreement could ultimately be decided. Increasing graduation of student athletes is an important issue that won’t be solved by any single rule change. Similarly, a player’s ability to directly benefit commercial opportunities is an issue that should be left unchanged in the immediate agreement but remain on the table for discussion as the Ed O’Bannon lawsuit plays out. A punishment structure that doesn’t penalize student athletes for the actions of boosters should be readily considered.

The National Labor Relations Board decision has brought much needed light to the important issues facing college athletics; however, at the end of the day, unionization would create more inefficiencies and complications than benefits. Value can be created for the NCAA, universities, and student athletes by foregoing unionization in exchange for meeting selected CAPA demands and, critically, altering the structure of NCAA governance to bring student athlete influence in line with their considerable contributions.

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All of the authors are masters candidates in public policy at the Frank Batten School of Leadership and Public Policy. Elizabeth Brightwell is a member of the University of Virginia’s NCAA Division I women’s golf team, while Kyle Schnoebelen serves as Content Director of the Virginia Policy Review and its associated blog, The Third Rail.