Guest commentary: Here's why college football players have a good shot at forming a union

By Brian Scroggins

For the Deseret News

Published: Thursday, Feb. 6 2014 11:40 a.m. MST

Northwestern quarterback Kain Colter, second from left, speaks while College Athletes Players Association President Ramogi Huma left, United Steelworkers union official Tim Waters, second from right, and Steelworkers President Leo Gerard listen during a news conference in Chicago, Tuesday, Jan., 28, 2014. Football players at Northwestern University are forming what they say is a first-of-its-kind union for college athletes. Wildcat quarterback Kain Coulter joined union leaders at the press conference to announce the creation of the College Athletes Players Association.

Paul Beaty, Associated Press

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In the movie "The Best of Times," Reno Hightower, legendary quarterback of Taft High School, played by Kurt Russell, gets ready to run out on the football field to play a grudge match, 20 years in the making, against rival Bakersfield High. Before he leaves the locker room, he plunges a hypodermic needle into his scarred knee and pumps it full of some unknown painkiller. We all saw Joe Namath on TV last Sunday, and after he hang his colossal fur coat back in the closet, I'm pretty sure he rubbed some BENGAY on his knees after all the punishing hits he received in college and the pros.

For several years, I served as the commissioner of a Nevada state agency, modeled after the National Labor Relation Board (NLRB), and worked directly with more than 160 employers and 200 employee unions, so I know about collective bargaining. In a former professional position, I was the vice president of a construction trade association involved in teaching companies union avoidance techniques, therefore I feel qualified to discuss both sides.

I have seen the good and bad from union and non-union employers. Let me say that I am not advocating for college athletes to unionize. However, contrary to some opinions, I think the Northwestern football players have a good shot at accomplishing their goal. Let me tell you why.

What are the essential elements needed to form a union? You need an employer (or team) and a group of employees (or players) who want to organize. The majority of the employees (players) need to show interest in forming a union (50 percent plus one for a simple majority) and this is normally accomplished by signing union cards. The employee group (players) then ask the appropriate governing body (in this case the NLRB) for permission to organize a union. Once recognized by the governing body (NRLB) and showing majority consent, the employer must recognize and negotiate with the union.

Why does the NCAA think college players don't qualify as employees? College athletes are certainly not independent contractors. By IRS definition, "an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done." Universities, coaches and even the NCAA certainly control more than the "result of the work."

What is the difference between an employee and a college athlete? Employees have to work at specified times, often wear uniforms, do what their employers ask of them and get a paycheck for the work performed. I think college athletes meet the basic criteria of employees and then some. They have to show up for work (practice) at a specific time, wear uniforms and do what their employers (coaches) ask them to do. In fact, players are often required to do even more than employees.

In addition to the basics, they are also told when to go to class, when to study, when to go to bed and when to show up for games. The Webster Collegiate Dictionary (note it is the "Collegiate Dictionary") defines an employee as "one employed by another usually for wages or salary and in a position below the executive level" and thefreedictionary.com defines an employee as "a person who works for another in return for financial or other compensation." Employees receive compensation for their skills, and although college athletes may not technically be employees, they are recruited for their skills and paid by scholarship and other living expenses.

Do college players get hurt? Yes. Do employees get hurt on the job? Yes, but when employees are hurt on the job, they are covered by workers' compensation, which covers medical costs, lost wages and often includes a settlement. Some employees, like police and firefighters, are covered by a heart-lung provision, which means if a firefighter retires at age 50 and has a heart attack at age 70, it is often covered as a workers' comp claim even 20 years later.

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