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)