In 1950, a University of Denver football player named Ernest Nemeth injured his back while practicing with the team. When Nemeth filed a workers’ compensation claim, the university found that he was a student, not an employee, and therefore ineligible for benefits. The Colorado Supreme Court ruled in Nemeth’s favor, holding that when he was injured he “was in the employ of the University, was upon his employer’s premises, [and was] occupying himself consistently with his contract of hire.”
The court decision frightened Walter Byers, then two years into his 36-year run as the first executive director of the National Collegiate Athletic Association (NCAA). In response to the Nemeth decision, Byers remembered in a 1995 memoir, “the NCAA crafted the term ‘student-athlete,’ and soon [that term] was embedded in all NCAA rules and interpretations as a mandated substitute for such words as ‘players’ and ‘athletes.’”
In the 60 years since Nemeth, institutions and the NCAA have racked up an almost unbroken line of victories in lawsuits brought by athletes seeking to characterize themselves as employees for legal purposes. Now, in a widely watched proceeding in the Chicago regional office of the National Labor Relations Board (NLRB), a union representing varsity football players at Northwestern University has stunned the intercollegiate athletic community by winning preliminary designation as the players’ collective-bargaining representative.
The successful petition by the College Athletes Players Association to unionize Northwestern football players marks the first time that any union has used the apparatus of federal labor law to win certification as a collective-bargaining representative for active players. While the fledgling unionizing effort must still surmount formidable legal obstacles, including anticipated appeals by Northwestern University to the NLRB in Washington and conceivably from there to the federal courts, the regional office decision comes at a vulnerable time for intercollegiate athletics and may presage significant changes in the structural relationship between athletes and the colleges that award them scholarships.
The National Labor Relations Act, which covers private colleges and universities, guarantees the right to form unions. The same right is spelled out in most states’ public employee labor-relations acts, which apply to state institutions.
But collective-bargaining laws extend unionization rights only to “employees.” Whether those laws cover student athletes depends, then, on whether scholarship recipients qualify as “employees” under the statutory definition of that term. Until the recent regional office decision in the Northwestern case, the NLRB adopted a narrow and student-unfriendly test for determining whether particular categories of students did or did not qualify as employees. Under the “primary purpose test,” the NLRB categorized students as either “primarily students” or “primarily employees.” Citing language in the NCAA Manual characterizing athletes as “amateurs” who “should be motivated primarily by education,” the NLRB and reviewing courts traditionally ruled against athletes on the ground they were “primarily” students and therefore ineligible to unionize.
The recent decision by an NLRB hearing officer in the Northwestern case may mark a significant inflection point in the history of intercollegiate athletics. It may signal the beginning of a new era in which courts, labor agencies, members of the public, and perhaps even leaders of colleges and universities treat intercollegiate athletes—or at least the subset of athletes who participate in revenue-generating sports at Division I institutions—as employees entitled to the workplace-related rights typically accorded to salaried staff.
Should the specter of unionized athletes be of concern to boards? Some observers believe that unionized football and basketball players would mean potentially significant increases in the cost of big-time sports as players demand employment-related fringe benefits, protection against injury, liberalized transfer rules, and eventually compensation for their services. Meanwhile, proponents of the union movement insist that collective bargaining will redound to the dignity of intercollegiate athletes, protect their health and safety, and moderate some of the instability and hypocrisy surrounding big-time college sports today. With the unexpected union victory at Northwestern, it is unclear which side will win out. Boards should be prepared for the possibility of seismic structural and financial change in the world of revenue-generating college sports.
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