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Former NLRB Chairman Says Northwestern Athletes Have Good Case in Petition to Unionize

Now that the dust has settled after Northwestern athletes’ petition to unionize was sent to the National Labor Relations Board, the waiting game begins. As the questions and criticisms pour in, one question that seemed foreign just three days ago is now at the forefront of college athletics: Can college athletes actually unionize?

According to William Gould, a former chairman of the National Labor Relations Board — the same board former Northwestern quarterback Kain Colter and his teammates filed their petition to this week — they have a pretty good case.

To be able to unionize, Northwestern’s athletes must be deemed employees. The university released a statement saying it believes its athletes are not employees, while the NCAA did the same, confident of a favorable ruling. The problem with this case is there is very little precedent. However, according to Gould, currently a professor at Stanford, the fact that medical interns and teaching assistants have been deemed employees in the past plays well in the athletes’ favor.

“The principle reason for that is their work  — they have conditions of employment, they have compensation, they’re directed and supervised by the coaching staff — their work is not related to the educational enterprise,” he said.

Medical interns who are students have been allowed to unionize because they work very long hours outside of typical instruction. For athletes, that goes a step further, in that they are required to participate in their sports to remain on scholarship, even though those outside duties are far less educational than the duties of medical interns.

“Athletes are separate from the educational institution,” Gould said. “They’re supervised by coaches, not faculty involved in the educational enterprise.”

The NCAA has long stood behind amateurism as its key component, and the organization will undoubtedly argue that if athletes are deemed employees, it takes away from the educational experience. However, given that billions of dollars in revenue are generated by college sports each year, Gould said, the case for collegiate amateurism is flawed.

“When you speak of it as amateur athletics, this is a vast commercial enterprise, and it’s hardly amateur,” Gould said. “I don’t know that we can really call it amateur.”

The NCAA’s statement said that if students are employees, it detracts from education. However, athletes are already on scholarship for non-educational reasons. Moreover, the idea of students as employees is not new. Work-study students — some of whom are on scholarship — are technically employees of the university, though they are not unionized.

College athletes will need to argue that they have similar restrictions and duties as these employees, and employees of any other company. Just like other employees, Gould said, eligibility, health and safety rules are all “conditions of employment.”

The major discussion point surrounding the union case has been what the athletes are asking for. Unlike the Ed O’Bannon lawsuit, Northwestern’s players are not asking for royalties from the use of their likeness and from television revenue, or for “pay-for-play.” Rather, they are asking for medical compensation and a trust fund to help with graduation rates, among other things, according to the website for the College Athletes Players Association (CAPA).

However, while that will be the focus if CAPA ever turns into a reality, it will not be a major part of the case.

“It may be that some testimony may be introduced of what collective bargaining is likely to consist of,” Gould said, but the crux of the argument is “are they employees?"

Regardless, a decision won’t come any time soon. Gould said the system “lends itself to delay, delay, delay” and he estimated that “we’re looking at 2-3 years at a minimum.” As Colter noted, it could go all the way to the Supreme Court.

If unionization is achieved, there are still further questions: How will the NCAA rules adapt to athletes from the same sport being in different unions? Perhaps on a more philosophical level, how successful can athletes even be in collective bargaining?

These questions will remain as we wait for the process to work itself out, but for now, it’s clear that the athletes have a case in their quest to shed the NCAA-invented “student-athlete” label for an official “employee” label — at least enough of one to make the NCAA sweat.