Athletes at Northwestern seek union representation

This one will certainly bear following, from ESPN:

For the first time in the history of college sports, athletes are asking to be represented by a labor union, taking formal steps on Tuesday to begin the process of being recognized as employees, ESPN’s “Outside The Lines” has learned.

Ramogi Huma, president of the National College Players Association, filed a petition in Chicago on behalf of football players at Northwestern University, submitting the form at the regional office of the National Labor Relations Board.

Backed by the United Steelworkers union, Huma also filed union cards signed by an undisclosed number of Northwestern players with the NLRB — the federal statutory body that recognizes groups that seek collective bargaining rights.

According to the article, the National Labor Relations act governs private entities, including private universities like Northwestern. Therefore, a favorable ruling for the Northwestern players would affect all players at private schools. It would not affect players at public institutions, since those are governed by state labor laws (which is particularly unfortunate for players in southern schools, like UNC, given the labor law landscape in the South).

There is, unfortunately, what appears to be an egregious error (or a very poorly edited paragraph) in the ESPN report. Author Tom Farrey writes (see update below. Farrey was not wrong. It’s just that subsequent case law reversed the precedent he described. My mistake for not knowing the full history):

“Athletes playing for university-based teams are not currently considered employees by any legal body. They haven’t been since 1953, when the Colorado Supreme Court upheld a determination by the state Industrial Commission that a football player at the University of Denver was an “employee” within the context of the Colorado workers’ compensation statute.”

As a result, the university was responsible to provide workers’ comp for his football injuries.

But here’s what Taylor Branch wrote in his 2011 masterpiece, The Shame of College Sports:

But the origins of the “student-athlete” lie not in a disinterested ideal but in a sophistic formulation designed, as the sports economist Andrew Zimbalist has written, to help the NCAA in its “fight against workmen’s compensation insurance claims for injured football players.”

“We crafted the term student-athlete,” Walter Byers himself wrote, “and soon it was embedded in all NCAA rules and interpretations.” The term came into play in the 1950s, when the widow of Ray Dennison, who had died from a head injury received while playing football in Colorado for the Fort Lewis A&M Aggies, filed for workmen’s-compensation death benefits. Did his football scholarship make the fatal collision a “work-related” accident? Was he a school employee, like his peers who worked part-time as teaching assistants and bookstore cashiers? Or was he a fluke victim of extracurricular pursuits? Given the hundreds of incapacitating injuries to college athletes each year, the answers to these questions had enormous consequences. The Colorado Supreme Court ultimately agreed with the school’s contention that he was not eligible for benefits, since the college was “not in the football business.”

As perverse as that last line sounds today, particularly with respect to football, it is within this legal context that college athletes have been laboring ever since.

As I said, this will bear watching.

Update: According to my friend and colleague, Dr. Richard Southall: “The case referred to (in the Farrey article) involved the State of Colorado Industrial Commission, which ruled a University of Denver player an employee. Later, the Colorado Supreme Court – in another case involving a Ft. Lewis A&M player – ruled the player was NOT an employee. Colorado then had conflicting rulings, but the Supreme Court had precedent.” Richard clarified to me in a subsequent email that the state Supreme Court did rule the U. Denver player an employee but ruled differently in the subsequent Ft. Lewis case. That latter precedent is the one that has held in litigation over the years about NCAA athletes.

Later update: SI has a Q and A with Michael McCann, the excellent sports law attorney and writer. McCann expects litigation stemming from the players’ action to stretch beyond this year, for other school teams to join in and says Title IX considerations could arise.


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