Hurdles remain for players, schools

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A National Labor Relations Board regional director Wednesday found that Northwestern football players who receive scholarships are university employees and may unionize. The ruling might be groundbreaking, but we are a long way from breaking ground on a union hall adjacent to the Nicolet Football Center.

For one thing, the decision released on Wednesday isn't the last word. It is the first word. Anyone who can identify the doink-doink of "Law & Order" has heard the legal cliché that a prosecutor can indict a ham sandwich. What hearing officers do is akin to certifying a class in a class-action lawsuit. Now the game begins.

As my colleague Lester Munson detailed, regional director Peter Sung Ohr believes that former Northwestern quarterback Kain Colter and the sundry current Wildcats who want to unionize have a good case. However, Northwestern already has said it plans to take the case to the entire NLRB.

For another, this decision would contradict a stack of case law in which courts have ruled that student-athletes are not employees. If the full board turns down Northwestern's appeal, surely the university will take its case back to the courts, where that case law might have more sway.

And even if the courts reverse the case law and rule that the players may unionize, thus changing the character of intercollegiate athletics, don't you think that the legislative branch (Congress) would join the fun?

So nothing is going to happen for a long time.

But the most interesting law here might be the law of unintended consequences.

Let's say that the NLRB sides with Colter. And let's say they vote to authorize the College Athletes Players Association to represent them.

Look at how Ohr made his decision. He illustrated how they perform services under a contract of hire (scholarship), subject to the other party's control (coaches) and in return for payment ($61,000 per academic year at Northwestern; $76,000 for those players who attend summer school).

Stanford released a statement Wednesday which read: "Stanford student-athletes go through the same admission process as non-student-athletes and must meet the same academic requirements once admitted."

But Ohr ruled the football players are not primarily students, citing the time demands of the sport at the Football Bowl Subdivision level. Ohr spent four single-spaced pages describing the 12-month workload of the Wildcat football player. It is typical of any FBS school, and it should be a must-read for any parent before he or she signs the grant-in-aid.

But the workload of the college athletes in non-revenue sports is also extreme. They also sign that contract to perform services. They are subject to the control of the coaches, and in return for payment. By these criteria, they deserve to join the union, too.

Do the men's and women's tennis teams demand the same benefits that the football team gets? Do the non-revenue athletes, who are superior in numbers, take over the union? Will the athletic department have to deal with a different union in each sport?

Another former Northwestern quarterback, C.J. Bacher, released a statement that there is "overwhelming consensus" among the former Wildcat student-athletes with whom he has spoken that they have a "great deal of concern" about what could happen to their alma mater.

The ruling glosses over or ignores a lot of other issues that, while they might not concern Ohr, certainly concern the rest of intercollegiate athletics.

Ohr waves away the idea that football provides academic benefit. The other benefits that the game provides -- "character, dedication, perseverance, and teamwork" -- might be valuable but, he says, they are not academic.

The NLRB only administers private employers. There are, Ohr wrote, 17 private institutions with FBS football teams. Are they to live under a different set of rules than the 100-plus public colleges and universities they compete against? What is the NCAA's role?

Ohr ruled that the grant-in-aid is compensation for athletic services, and just because Northwestern doesn't call it taxable income doesn't mean it isn't. If it is taxable income, the players might have lost by winning. On the other hand, how many members of Congress will sprain an ankle or tear an ACL rushing to provide an exemption?

On the grand landscape of legal issues facing intercollegiate athletics -- Northwestern, the O'Bannon case -- the one that universities ought to be the most concerned about is the antitrust case filed recently by former West Virginia running back Shawne Alston against the five equity conferences.

Alston charged the schools' refusal to pay the full cost of attendance is a restraint of trade, and it's hard to imagine how he's wrong. That's about $2,000 per athlete per year before you get into treble damages.

In other words, the battle over unionization might be a skirmish compared to what else is out there. Settle in -- the next few years might become the most momentous in the history of intercollegiate athletics.

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