National Labor Relations Board's latest decision highlights mistreatment of college athletes

NLRB's definition of employee reveals how it failed to protect athlete.

The football team at Northwestern University took collegiate athletics by storm in 2014, attempting to unionize and thereby win collective bargaining rights.

Although a regional director of the National Labor Relations Board, which governs labor disputes in the private sector, ruled the Northwestern players were employees under the National Labor Relations Act’s definition, the national board cowardly refused to assert its jurisdiction, issuing an opinion that amounted to a punt.

However, by not ruling on whether or not the Northwestern athletes were employees, the Board left the door open to another challenge by athletes, writing it “might assert jurisdiction in any case involving grant-in-aid scholarship football players.”

Last month, the NLRB demonstrated just how baseless its decision (or lack thereof) in the Northwestern case was when it ruled that graduate student assistants at private colleges were employees per the NLRA. In that decision, the Board wrote that it “has the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated.”

If that were the standard applied to the Northwestern football players, they would’ve likely been classified as employees, which would’ve opened up the possibility of unionization and mandatory collective bargaining with their institution.

Where they perform work

This is by far the easiest of the NLRB’s three-pronged standard to apply to collegiate athletes. Last April, the Pac-12 released survey results (which included ASU athletes) indicating that its athletes spent 50 hours per week on athletically-related activities during their season, including travel to and from competitions. Between practice, team meetings, athletic department meetings, medical treatment and travel, players often commit 40-plus hours to their program — anything but the “avocation” the NCAA proclaims it be.

The fact that the “work” was performed outside of the classroom does not appear relevant to the Board’s definition. And even if the Board’s definition was education-dependent, coaches and administrators often tout their players’ athletic participation as an extension of the educational process; one of the NCAA’s core values is a commitment to “the supporting role that intercollegiate athletics plays in the higher education mission.”

At the direction of the university

Again, this is a rather simple standard to apply to the Northwestern case: Those players, as well as their peers at institutions across the country, perform their work at the direction of their university-hired-and-paid coaching staff.

The Board’s Northwestern decision found that “the coaches exercise a great deal of control over the players,” and “the location, duration, and manner in which the players carry out their football duties are all within the control of the football coaches.” This style of relationship is mirrored at nearly every NCAA institution, each of which can vest near-dictatorial powers in coaches. These coaches have the authority to determine the types of majors athletes may choose, the types of campus organizations players can join, set practice hours (and change them on a whim) and a multitude of other aspects of an athletes’ behavior.

Indeed, a coach’s control can extend deep into players’ lives, even reaching into non-athletic business (including how long athletes can be away from campus during university holidays). For football players whose teams qualify for bowl games (80 teams in 2015), it is not unusual to spend Christmas Day away from their families.

That was the case for ASU players in 2014, when coaches did not let athletes to return home for Christmas prior to the Sun Bowl, which was played on Dec. 27. Similarly, ASU players were kept on campus through New Years last season the run-up to the Cactus Bowl at a time when most other students were enjoying time at home with their families.

In short, institutions, through their coaching staffs, exert absolutely control of college athletes’ athletic lives — and often much more.

For which they are compensated

College athletes do receive compensation — in the form of an athletic scholarship — for the services they render to the institution. 

“While it is true that the players do not receive a paycheck in the traditional sense,” the Northwestern Board noted, “they nevertheless receive substantial economic benefit for playing football.” 

This makes clear that the Board regarded an athletic scholarship (such as the ones received by ASU players) as payment for their sport-related duties.

Collegiate athletic administrators often endorse this “education-as-pay” logic, often self-servingly arguing that what athletes need is an education, not a salary (as if the two were mutually exclusive).

However, the value of an athletics scholarship receive is capped far below the what players could command on an open market — during the prime earning years of their lives — costing athletics (particularly those in the revenue sports) hundreds of thousands of dollars. For athletes from disadvantaged backgrounds, this additional money could be life-changing, especially when considering the slim likelihood of a pro career.

Thus, by the NLRB’s own definition, college athletes appear to be employees.

So why were the Northwestern players not certified as employees?

Because doing so “would not serve to promote stability in labor relations." If “stability in labor relations” were the paramount consideration in every employment-related decision, slave labor would still exist in places where it has long since been eradicated.

In this country, if the Civil War-era states had “stability in labor relations” as their top priority, the Thirteenth Amendment likely wouldn’t have been passed, allowing the abominable practice of human ownership to continue.

While collegiate athletic participation is certainly not perfectly analogous to involuntary servitude, both systems’ denial of basic labor and economic rights to its workers. Northwestern’s football players bravely attempted to claw back those rights, petitioning the very authority (NLRB) that is supposed to provide protection from such exploitation.

By refusing to grant college athletes the same rights and freedoms it recently allowed graduate student assistants to exercise, the NLRB reinforced the disturbing century-old pattern of treating college players as second-class economic citizens, thereby enabling future exploitation of athletes everywhere.

When asked to judge another inevitable case involving collegiate athletes, the Board must assert its jurisdiction and end the sinister practice of requiring players to leave their rights at the gym door.


Reach the columnist at cameron.miller.1@asu.edu or follow @camerun_miller on Twitter.

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