Kenneth Dau-Schmidt, a professor and labor law expert at the Indiana University Maurer School of Law, says the ruling by the National Labor Relations Board allowing Northwestern University football players to unionize may "have legs" under the law.
Although Northwestern has indicated it will appeal, he believes there's a good chance the entire NLRB and perhaps even the U.S. Seventh Circuit Court of Appeals will confirm the decision.
"The definition of 'employee' under the National Labor Relations Act is fairly broad," Dau-Schmidt said. "There are exceptions, but none of them apply to this case. There is a prior decision that university research assistants and teaching assistants are not employees under the NLRB, but that decision is very weak and can be distinguished because there the activity was part of the student’s educational program. The football players are directed to perform for the benefit of the university and receive compensation in the form of scholarships and stipends, so there is a pretty good argument they are employees for the purposes of the Act."
Dau-Schmidt said it's important to note, however, that athletes at public universities would not be covered by the National Labor Relations Act. State employees are governed by state law, not the federal labor act. In Indiana, the general rule is that it is a criminal act for state employees to collectively bargain, although university employees are exempted from this prohibition and teachers, police and firefighters have separate statutes.
"Under Indiana common law, a public university would have no obligation to negotiate with its athletes; but if they did sign an agreement, it would be enforceable," he said. "From a practical perspective, if private universities began giving student athletes better insurance or stipends as a result of collective bargaining, public universities would have to follow suit to compete for athletes. Some of the money that now goes to pay large coaches’ salaries might go instead to pay for medical of disability insurance for college athletes."
If this decision is upheld and college football players at private universities begin to organize, Dau-Schmidt added, there is a good question of how this system would work consistently with the Title IX requirement of equal athletic opportunities for women.
"Where there is a positive cash flow in college athletics, it's usually associated with men’s football and basketball, not other sports. At the bigger schools, men’s football and basketball revenue supports the other athletic programs. Would Title IX mean that the football players have to negotiate benefits for all athletes and not just themselves? That would make for a very curious system of collective bargaining."
Dau-Schmidt is the Willard and Margaret Carr Professor of Labor and Employment Law at the IU Maurer School of Law. He can be reached at 812-340-7113 or firstname.lastname@example.org. For additional assistance, contact Tracy James at 812-855-0084 and email@example.com.