Keeping Score

College Athletes Need To Unionize, Now

It's the next logical step after displays of unity

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Twenty-eight college football players caused a minor stir when they all wrote the letters APU — “All Players United” — somewhere on their gear during their games last week.

The move by the athletes from Northwestern, Georgia and Georgia Tech was a peaceful protest, an important statement that college football players are becoming more aware of a fundamental economic injustice: schools are making millions off of their work, but players are restricted from accessing that cash and the commercial opportunities that come with it.

“More players and teams have expressed interest in doing something similar,” said Ramogi Huma, president of the National College Players Association, which helped plan the APU gesture. “I’m optimistic it will grow in the weeks to come.”

Despite the message from players, this week college sports leaders reiterated their hard-line against pay-for-play. Big Ten commissioner Jim Delaney said that players who wanted to “professionalize themselves” could skip college. He said schools should work with the NBA and NFL to create minor league opportunities.

“They can sell their likeness and do whatever they want to do,” Delany told a group of reporters. “We don’t want to do that. We want to do what we’ve been doing for 100 years.” That’s how long it took college “brands” to build themselves, Delaney said. “It’s not about any 17- or 18-year-old who demands, ‘I want to be paid for play,'” Delaney said.

(TIME: After Video Game Settlement, NCAA Is Last Defendant Standing

If the NCAA doesn’t bend their rules, the courts may provide some relief. Already, EA Sports — maker of popular NCAA-branded video games — and the Collegiate Licensing Company have settled the claim in the “O’Bannon” lawsuit that the companies profited off the likeness of current and former players, without fairly compensating them.  The parties settled for $40 million.

Still, if college players want better financial, health, workers’ compensation and educational benefits, they need to keep fighting. Though the APU statements are a noteworthy first step, they lack real teeth. The players should take APU to the next logical level and actually form a real labor union.

In order to unionize, a group of workers must be considered “employees” under federal or state law. The NCAA has gone to great lengths to keep the “e-word” taboo. Back in 1953, the Colorado Supreme Court upheld a state industrial commission decision that a University of Denver football player was an “employee,” and thus entitled to worker’s compensation for his football injuries. This spooked the NCAA, and as then-NCAA president Walter Byers wrote in his 1995 memoir, Unsportsmanlike Conduct: Exploiting College Athletes:

[The] threat was the dreaded notion that NCAA athletes could be identified as employees by state industrial commissions and the courts.

[To address that threat, w]e crafted the term student-athlete, and soon it was embedded in all NCAA rules and interpretations as a mandated substitute for such words as players and athletes. We told college publicists to speak of “College teams, no football or basketball “clubs,” a word common to the pros.

In our recent cover story advocating pay for players, Big 12 conference commissioner Bob Bowlsby explained his opposition to the concept: “I just don’t think we ever want to go down the path of creating an employee-employer relationship with student-athletes.”

But according to some legal scholars, such an employer-employee relationship already exists in college sports, despite the lack of cash compensation available to players. So athletes haven an opening to form a union.

In a  2006 paper published in the Washington Law Review, Robert and Amy McCormick, married Michigan State University law professors, made the case that college athletes are indeed employees under the National Labor Relations Act, which governs private sector labor relations. “In short, the relationship between the university and the scholarship athlete is that of employer and employee,” the authors write. “Employers pay their employees in exchange for services. Universities likewise award grants-in-aid to athletes in exchange for the athletes’ services in their sports.”

In 2004, the National Labor Relations Board (NLRB) held that Brown University graduate teaching assistants and research assistants weren’t employees, primarily because of the academic nature of their services. TA’s in private colleges couldn’t unionize because “students serving as graduate assistants spend only a limited time performing their duties,” the work is directly tied to their courses of study, and they’re overseen by faculty.

What hurts the TAs, however, helps the athletes. Football takes up tons of time. Players are often athlete-students, not student-athletes. Football and basketball aren’t credit courses. Screaming coaches aren’t faculty.

So the authors concluded that college athletes, by any measure, are workers under federal law. When asked to discuss the merits of the argument, the NLRB declined to comment.

The National Labor Relations Act, however, governs only private institutions.  But what about the big state powers? Athletes at public schools would have to defer to state labor law. In a 2012 paper published in the Buffalo Law Review — titled “A Union Of Amateurs: A Legal Blueprint to Reshape College Athletics” — former University of California-Berkeley law students Nick Fram and Thomas Frampton argue that in 14 states, college athletes at public colleges could be considered employees. California’s student-employee test, for example, asks: are the services rendered related to the student’s educational objectives? College hoops is not a class. Coaches aren’t professors. So players may be called employees.

Florida, Michigan, Nebraska, Kansas, Illinois, New Jersey, New York, Rhode Island, Oregon, Massachusetts, Iowa, Pennsylvania, and Montana are the other states Fram and Frampton identified as favorable to athlete unionization. Some states limit, or prohibit, public employees from unionizing altogether. Under state law, college athletes at the University of Alabama, for example, have no constitutional or statutory right to collectively bargain. But if, say, athletes at Florida got officials to the bargaining table and negotiated more favorable benefits for players, Alabama — a Southeastern Conference rival — would face enormous pressure to tweak state law.

A player labor movement wouldn’t guarantee extra benefits. But it would at least force schools to bargain in good faith. “Athletes would have some ability to influence their lives,” said Robert McCormick, the law professor from Michigan State who wrote about college-athlete unions.  “They can push for lifelong healthcare benefits, funds to continue education after their eligibility is expired, you name it.”

APU can catch the public’s eye. But if all players are truly united, it’s time to get the union cards printed.

(MORE: Time Cover Story – It’s Time To Pay College Athletes) 

29 comments
seymourglass26
seymourglass26

The only legitimate reason college athletes can pretend a college education isn't pay enough is because some are held hostage for a few years by professional league policies. If athletes, as adults, were allowed to go pro at 18, the conversation would be over. Want to be a pro player? Be one. If you actually want to go to school, go to school and be gracious of your opportunity. This is a huge distraction from what college is about, since these kids with dollar signs in their eyes are only students, because they're forced to be for a year or two. They may be stars who make money for a university, but they're poison in the academic community. Abolish the double-standard NFL, NBA. If kids can vote, let them play.

mrbomb13
mrbomb13

Sean Gregory forgets that these "student-athletes" are Students first, and Athletes second.  To pay student athletes would be to acknowledge that their employment takes precedence over their work as a student.  It would also create a perverse incentive to spend more time on the field/in the gym than focusing on studies. 

After all, the point of a college/university education is to learn the skills necessary to become successful in life.  Learning how to throw a football or dunk a basketball won't cut it in the long-run.

dlws8607
dlws8607

"What hurts the TAs, however, helps the athletes. Football takes up tons of time."  This statement alone tells me this "writer" does not have a clue what he is talking about.  TAs spend significant amount of time doing their jobs at universities.  Even though athletic supporters do not see the time spent by TAs, it is still there.

DeweySayenoff
DeweySayenoff

I've said it before: Pro sports teams need to sponsor sports colleges to weed out their "picks".  It's time we stopped paying tax dollars, and wasting tuition, on college sports.

I have to wonder how much LESS tuition would be if sports weren't an option at those schools.  Where high paid coaches and sporting departments were kicked off campus to fend for themselves in arenas specifically designed, and paid by pro sports for high school kids who are deluded enough to think they have a shot at the pros.  All those "sports scholarships" going to students who have a statistically far greater chance of earning a living from the degree they choose than the 500:1 long shot of earning a paycheck on a pro sports team.

Let the pro teams sponsor sports colleges for these wannabes.  I figure two years, tops, is all they'll need to decide if someone is worthy of the title "professional athlete".  Then they can go to regular college and get a REAL education without all the scandal, hype and BS associated with jocks on a college campus.  Donations from alumni wouldn't be prefaced with "support your alma mater team".  The purpose of a college education is to educate and teach for a viable career.  A person with a liberal arts major has a FAR better chance of getting a job than a jock.  And liberal arts majors SUCK at getting jobs in their field.

The point here is there is a hell of a lot of money spent on college sports that would better be served by graduating people who have a considerably better chance at a career in their field of study than an athlete.  I see virtually all college sports as a waste of taxpayer funds and campus resources that can be better covered by the pro sports leagues themselves. And since it's ONLY pro sports that benefit from essentially free taxpayer funded colleges and university sports programs, it's time they carried the financial burden of finding their up and coming players.

DanBruce
DanBruce

Already ESPN has as many articles on legal and police matters as it has on sports on any given day. So, if college athletes decide to go on strike, we can always tune in to see most of them on Court TV sooner or later.

JamesFlowers
JamesFlowers

I think you will see a very specific split in how revenue sources are handled.  College athletes will not be paid to play, but the NCAA will have to start compensating them for revenues earned; things like game and merchandise deals specific to an athlete.  I can see this money being held in trust until such time as the athlete leaves the NCAA (drops out, graduates, moves to NFL, MLB, etc) to stop any possible impropriety. 

vstillwell
vstillwell

But labor unions are bad. They just exploit the wealthy. Those poor rich athletic administrators will have to take pay cuts! It will be the end of freedom!

jakespaniel
jakespaniel

College students are paid and compensated for their talents. It's called the scholarship money they receive covering tuition, books, and housing. At some schools that can be $100,000 or more for four years. 

stevedumford
stevedumford

Colleges should get out of the business of football and start concentrating on academics.  If college players want to earn money, then they should form their own minor leagues that the NFL could draft from.  

Omagus
Omagus

@seymourglass26 "they're poison in the academic community."
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Can you expand on this please?

Omagus
Omagus

@mrbomb13 "Sean Gregory forgets that these 'student-athletes' are Students first, and Athletes second."
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That's such a lie. These players are not recruited as students, they are recruited for what they can do on the field or court, not what they can do in the classroom. If they happen to be good students too, that's just a bonus. Additionally, the scholarships are controlled by the athletic department, not by any academic office or by how well a student is doing in class. The scholarship of a star quarterback with a 2.2 GPA is much more secure than the one of a third-string defensive tackle with a 3.9.

dlws8607
dlws8607

@vstillwell Unfortunately, universities will do as they have always done and take money from academics to further support athletics.

vstillwell
vstillwell

@jakespaniel Sorry, chief, but a scholarship to Alabama isn't worth the paper it's written on, and that goes for most of the those so called "universities" in the South. 

Omagus
Omagus

@jakespaniel "College students are paid and compensated for their talents. It's called the scholarship money they receive covering tuition, books, and housing."
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So you'd have no problem working the job you have now but for a scholarship instead of your salary, right?

commanderotto
commanderotto

@jakespaniel  totally agree. And I am surprised at why time magazine is putting so much time to "support" these future sports stars who will make millions when they leave college. The universities are giving them money in scholarships and they only become famous thanks to the university itself. That means, these athletes are in a mutually beneficial relationship that equates in FAME for both. In other words, the team would not be famous without the players, but the players would be NOBODY without the college team that supported them and trained them in the first place. On top of that, the university uses the profits to keep tuition costs down for other less fortunate students studying engineering, economics, math, biology....

brentsurf1
brentsurf1

@stevedumford What fantasy world do you live in. College football players are generally not there for an education. 99% of them got into school on an athlete waiver. The college football draft is modeled after the pro draft. $$$$

eagle11772
eagle11772

@stevedumford I agree.  Recently I saw a map of the U.S. on the web, and by hovering your mouse over each state, a popup showed the type of job, and annual pay that was the job title and pay was the highest paid state employee for that particular state.  MORE THAN TWO-THIRDS of the highest paid state job title was "university coach" !  And the pay was MILLIONS !  This is just plain WRONG !  It's IMMORAL !  Colleges and universities are supposed to be teaching young adults, NOT making millionaires out of sports coaches !  People should really contact, and pressure, their state representatives, and state senators to put an end to this !

mrbomb13
mrbomb13

@Omagus @mrbomb13 

First, thank you for your reply.  Just a couple of comments:

1) If a recruit is an athlete first and student second, than what should the athlete's degree be after the 4 years (in recent times, perhaps 5-6)?  A B.A. in QB?  A B.S. in Free-throw Shooting?  Minus those who get recruited in the NBA/NFL/etc., where will the rest of the wannabe pros go?  While being on a college team is admirable for its commitment/dedication, current employers are taking a hard look at real, tangible, applicable skills.  Those include skills in analytics, professional writing, technology, etc..  If an athlete does not possess those, he will be a 'fish out of water' when it comes to making entry into the job market.

2) While the scholarship of a star QB may be more "secure," his hypothetical 2.2 GPA would be worrisome to a post-collegiate employer.  If I'm a potential employer who's not an NFL team or coaching association, than I don't give a rat's ass how well he can throw the football.  I would much rather consider his third-string teammate with a 3.9 GPA, because that young man sounds like he has his head screwed on straight.  A 2.2 says you did the bare minimum academically, and (as a working professional) I would not want that kind of lazy attitude in my business. 

In a sour economy, I want the best mind, and not the best throwing arm.

commanderotto
commanderotto

like... basically, these students are already rich. They just need to graduate and then the big bucks are going to come in. They have to give something back to the university that helped them become stars in the first place. 

Omagus
Omagus

@eagle11772 "This is just plain WRONG !  It's IMMORAL !"
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This is only true if you believe that capitalism by its very nature is wrong and immoral.

Omagus
Omagus

@mrbomb13 "f a recruit is an athlete first and student second, than what should the athlete's degree be after the 4 years (in recent times, perhaps 5-6)?  A B.A. in QB?  A B.S. in Free-throw Shooting?"
--

You're asking literal questions about things that these universities want to keep abstract. Of course there is no way under the current system that an athlete could major in his particular sport but that alone doesn't mean that they are being brought to campus as students first. There are all kinds of stories about how many of these athletes wouldn't have been able to get into their university based on academics alone, and how coaches and advisors tend to push them toward certain majors (or particular professors) that will help keep them eligible to keep playing their particular spors. This logical conclusion from this is that these athletes are not being brought to campus for the purposes of education.
*

"While the scholarship of a star QB may be more 'secure,' his hypothetical 2.2 GPA would be worrisome to a post-collegiate employer."
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Absolutely. But at that point, his collegiate eligibility has been used up and the university no longer cares what happens to him.

Omagus
Omagus

@commanderotto "but in those cases they are still getting a good deal. They play a sport and they get scholarships."
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There are a lot of people on university campuses that get scholarships. Most of them aren't generating revenue anywhere near the amount the football and men's basketball players are generating. Yet those athletes are the only ones expressly forbidden from making money elsewhere. It's illogical and unfair.

brentsurf1
brentsurf1

@commanderotto Less than 10% of college players get drafted and of those less than 1/2 play more than three years.

Omagus
Omagus

@dlws8607 You're tying coaches' salaries into wins. There's a correlation between the two but it's the wrong relationship. Capitalism looks at how much the coaches make vs how much revenue they are generating. Mack Brown made over $5 million last year. The Texas Longhorns only won nine games. Going by wins, that's obviously not a good investment. However, the University of Texas athletic department generated over $120 million in revenue. By that measurement, his salary was justified.

dlws8607
dlws8607

@Omagus @eagle11772 Where is the capitalism when the state pays coaches millions of dollars for not delivering winning teams?