Student Athletes as Employees – Second Down: The Steelworkers and The NLRB

As we reported, earlier this week the National Labor Relations Board (“NLRB” or “Board”) decided that it would not exercise jurisdiction with respect to the representation petition filed by the College Athlete Players Association seeking to represent the scholarship members of the Northwestern University football team.  The Board did not answer the question of whether it considered the team members to be employees of the university and explained that for policy reasons it was not answering the critical questions at this time.  It did however make clear that it might well do so in the future and that it very well could find players on scholarship to be employees who have the right to negotiate with the university as their employer.

Since then, the United Steelworkers of America which is the union behind the College Athlete Players Association has made clear that this is only the first play in what it promises will be an ongoing effort to change the way student athletes are treated under the NCAA rules.  As reported by the New York Times, the Steelworkers goal is for student athletes to be recognized as employees of the universities for whom they “play” and to secure for them collective bargaining rights. Steelworkers President Leo F. Gerard said yesterday that “the USW remains as committed as ever to the idea that scholarship athletes deserve the same rights and protections afforded to other Americans.”

He also made clear that from his union’s perspective that although the campaign to have student athletes recognized as employees with bargaining rights may well be a long one but that the Steelworkers are in it for the duration.  “Maybe it won’t happen in 2015,” he said, “But before today’s athletes send their children to college, every college scholarship football player and every college scholarship basketball player will be a proud union member and no longer exploited on their jobs.”

Ramogi Hama, President of the College Athlete Players Association and John Adam, the lawyer for the Association in the Board proceedings, spoke of lobbying and lawsuits as tools the Association plans to use in its fight to secure bargaining rights.  They compared this effort to the challenges to the reserve clause in baseball that culminated in the Curt Flood case and opened the era of free agency in major league baseball.

Clearly the stakes are huge and the battle is nowhere near resolved.  If the Steelworkers and the College Athlete Players Association have their way, college sports in this country may well be unrecognizable in the near future.