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.
What happens when players get hurt? I am friends with the brother of one of the former NFL players who brought suit against the league. Although they did not accept liability, the NFL recently set aside three-quarters of a billion dollars to educate and assist former players. I think some college coaches saw the idea of unionization coming.
A few years ago, South Carolina coach Steve Spurrier, along with other Southeastern Conference coaches, proposed to pay players $300 per game. Not a bad idea if you believe the National College Players Association (NCPA) website, which quotes a study titled "The Price of Poverty in Big Time College Sports" that says "the room and board provisions in a full scholarship leave 85% of players living on campus and 86% of players living off-campus living below the federal poverty line."
What happens now? Believe me, when this can of worms is opened, it is going to affect every college sports program in the nation and not just football. This week, I spoke with an athletic director from an NCAA Division II school, who said, "We aren't even sure if Division II student-athletes will be included/affected." If the NLRB sides with the Northwestern players, what is the difference between Division I, Division II or even Division III? Whether you choose to go to the finest restaurant, a local diner or choose fast food, you are still being served by employees.
If the NLRB approves the request by the NCPA, which is representing Northwestern, where do you start and better yet where do you stop? So many questions come to mind. Who is covered and for how long? Do you only cover football players? What about basketball players, baseball players, lacrosse players, rugby players, softball players? The list goes on and on.
What if universities in heavily unionized states (USC, UCLA, Ohio State, Oregon, Washington, Michigan, Michigan State, Penn State, Wisconsin, Missouri, West Virginia, Kentucky, etc.) organize but universities in right-to-work states, (Alabama, Oklahoma, LSU, Florida State, Auburn, Texas, Florida, Tennessee, Boise State, Georgia, Mississippi, BYU, Arkansas, Utah, Nebraska, Utah State, etc.) choose not to unionize? Does this present problems when a team from the SEC comes west to play a team from the Pac-12? Will union teams even play non-union teams or play in stadiums where event personnel and concession workers aren't unionized? The number of potential scenarios boggles the mind.
If the NRLB denies the request, the issue will continue to resurface over and over again, year after year. Anyone who has been around unions for any length of time realizes that they don't normally take no for an answer and the issue is not going to go quietly away.
Brian Scroggins is a certified mediator and a consultant in the field of labor relations, human resources and employee relations. He is a graduate of Ricks College and BYU.