5 interesting tidbits from the Northwestern college football union NLRB ruling

I took the time to read through the entire NLRB ruling on the CAPA vs. Northwestern case which decided Northwestern football players could begin unionizing. (This may be more than the NCAA has done.)

For a full, lawyerly analysis, I suggest you head over to the mothership and read Patrick Vint, who, um, is a lawyer, and, uh, does a very good job. Really. Go read.

But what stood out to me is how severe of an ass-whooping we're dealing with. Pretty much every legal analyst came away from the initial hearings feeling the athletes would lose. Not only did they win, the NLRB handed them a decisive victory, finding nearly every argument they made compelling and summarily dismissing many of Northwestern's attempts at justifying their position. (Even the thing about how Patrick Ward said engineering class made him good at football.)  It's kind of shocking, to be frank.

I found some of the NLRB's rulings to be truly fascinating, so I figured I'd break down some of the more interesting ones. I'm not sure I agree with all the logical leaps the NLRB made, but I think it's interesting to note that they did.

1. Ya done goofed, NCAA, part 3,417

The CAPA successfully argued that players' scholarships, although not traditional compensation, were tantamount to the salary you get paid by your company to do your work. They got a pretty sweet assist from the NCAA:

Because NCAA rules do not permit the players to receive any additional compensation or otherwise profit from their athletic ability and/or reputation, the scholarship players are truly dependent on their scholarships to pay for basic necessities, including food and shelter.

Most college students can go out and get second jobs. And if, for some reason, somebody wanted them to sponsor a product, they'd be able to.

College athletes are different: because the college athlete to reap zero percent of the profit they produce, they can't endorse things and can't readily work a second job.

To the NLRB, this is admission that the money they receive from the school -- their scholarship, tuition, and stipend for food/rent -- is meant to be considered an actual payment.

If a unionized college football labor force turns out to be the NCAA's grave, they certainly helped shovel a few scoops of dirt out with their greediness.

2.. Northwestern's efforts to help kids graduate/get jobs doesn't make them not employers

In fact, the NLRB argued that Northwestern's attempts to help student-athletes academically reinforced the fact that college football is a full-time job:

To try to ensure that its players succeed academically, the Employer requires freshmen players (and sometimes upperclassmen) to attend study hall six hours per week and all the players have tutoring and advisory programs that are not available to regular students. Players are likewise required to participate in a four-year NU For Life Program which is meant to further their professional development once they graduate. However, these noble efforts by the Employer, in some ways only further highlight how pervasively the players' lives are controlled when they accept a football scholarship. The special assistance that the Employer must provide to the players so that they can succeed academically (or at least, maintain the required minimum grade point average and make adequate progress towards obtaining their degrees) likewise shows the extraordinary time demands placed on the players by their athletic duties.

Essentially, the NLRB found that Northwestern's extraordinary attempts to keep its students afloat academically and assist them as they try to get jobs after they graduate were practically an admission that being a football player precluded them from fully pursuing their academic options.

I think that reasoning is a bit tenuous -- they're not preventing them from pursuing their academic goals so much as telling them when and where they can pursue them -- but the point the CAPA was trying to make stands: the football team controls everything about a player's time commitments, to the point where academics are obviously not the primary goal.

3. Voluntary work is work

The NCAA tells a story that athletes are only permitted a certain amount of hours of practice/football-related activities per week, and that any further practice/football-related activities are the players' choice.

It seemed an easy case to make would be that these hours are in fact not voluntary: that wink-wink pressure from coaches forced players into putting in extra time, or that players feared they might lose their scholarship if they didn't participate in these activities.

But the CAPA admitted those hours were voluntary, and that players would not be in danger of losing their scholarship or "payment" for not participating. But the NLRB treated these hours and hours of training in an interesting way:

Importantly, while some activities during both on and off season such as additional conditioning, weight training and review of game tapes may not be directly mandated to maintain their scholarships and place on the team, such voluntary activity undertaken by football players in order to field a winning team, obtain a starting position or otherwise excel in this their chosen field is akin to the non-paid activities of an actor rehearsing lines or musicians practicing their instrument on their own time to enhance their performance in a commercial production. When these activities are included, it is clear scholarship players devote the bulk of their time and energy towards the football services they provide their Employer.

It's an apt comparison.

I do a lot of things that are "work" that haven't been mandated by an employer; I do them because I hope that I'll become better at my job and that this will lead to bigger and better things for me and/or my employer down the road.

If we consider playing football a craft, one which the athlete is being paid by the university to perform, then we can consider all voluntary drills to be a player trying to become better at their profession, even if it isn't mandated they do so.

4. Fitz's ability to pull a scholarship makes him the boss

Unlike other universities, the Employer, a couple of years ago, decided to move from one-year renewable scholarships to four-year scholarships. This certainly might make the players feel less pressure to perform on the field so as to avoid having their scholarship possibly not renewed for another year.31 But the fact remains that the Head Coach of the football team, in consultation with the athletic department, can immediately reduce or cancel the players' scholarship for a variety of reasons. Indeed, the scholarship is clearly tied to the player's performance of athletic services as evidenced by the fact that scholarships can be immediately canceled if the player voluntarily withdraws from the team or abuses team rules. Although only two players have had the misfortune of losing their scholarships during the past five years, the threat nevertheless hangs over the entire team and provides a powerful incentive for them to attend practices and games, as well as abide by all the rules they are subject to.

Northwestern is actually quite nice to its players: it gives them four-year scholarship instead of one-year scholarships, and has only ever pulled a players' schollie twice. (The document specifies that one was for firing a BB gun in a dorm -- this was Jeff Radek -- and that the other was for a second violation of the alcohol/drug policy -- we don't know who this was, and quite frankly, we should have no desire to know.) And even when players have suffered career-ending injuries, like John Plasencia or Chris Jeske, the team has gone out of its way to ensure they remain on scholarship despite their inability to play football.

But legally, Fitz can pull a scholarship. If a player violates the rules he puts into place, he can essentially fire them by taking away their compensation for playing football. They could also quit the team, and their compensation would end then.The fact that the scholarship is so closely linked to being on the team and playing football is what made this part of the NLRB's reasoning that a scholarship is an employment contract -- and just the fact that they're nice about it doesn't make it not true.

5. The NCAA kinda makes stuff up

We knew this, but its interesting to see it spelled out.

NCAA rules limit "countable athletically related activities" (CARA) to 20 hours per week from the first regular season game until the final regular season game (or until the end of the Employer's Fall quarter in the event it qualifies for a Bowl game). The CARA total also cannot exceed four hours per day and the players are required to have one day off every week.

Sounds good, right?

However, the fact that the players devote well over 20 actual hours per week on football-related activities does not violate the NCAA's CARA limitations since numerous activities such as travel,

Travel. Until teleportation is invented, players will have to travel to games, and that will be part of their duty to the athletic team.

mandatory training meetings,

"Mandatory training" seems... well... like athletically related activities.

voluntary weight conditioning or strength training,

As we noted, the NLRB has an interesting viewpoint on "voluntary," but I could actually give the NCAA a pass on this one.

medical check-ins,

I'd say that medical check-ins to take care of the injuries caused by playing football should be considered related to playing football.

training tape review

This is assigned by coaches, right?

and required attendance at "training table"

note: REQUIRED

are not counted by the NCAA.

The document goes on to find that although the team spent more than 24 hours in team activities from Friday to Saturday of the Michigan game in 2012 -- ugh, the Michigan game in 2012 -- only 4.8 hours were considered countable athletically related activities. Northwestern has been true to the NCAA's guidelines by not allowing players to do more than 20 hours of countable athletically related activities, but the document finds players actually spent about 40-60 hours a week doing football stuff. Which is about as much time as I spend on my job.

The NCAA came up with its own language to make itself sound like a trustworthy amateur athletic organization. The problem is that even a light parsing of their language reveals cracks and flaws. The countable athletically related activities farce is just one of many, but to see a ruling rationally break it down without submitting to the NCAA's faulty logic is fascinating.