Forming A Union: What Do College Athletes And Graduate Students Have In Common?

By now you’ve no doubt heard of the recent steps taken by football players at Northwestern University, led by former quarterback Kain Colter, to form a college football players union.  Employment at private universities is governed by the National Labor Relations Act (and its board, the NLRB), so a key hurdle will be for the players to have the NLRB determine that the players are “employees” under the Act.

There are two bits of good news for the players: 1) the definition of employee under the act is extremely broad, and 2) there is some recent precedent in their favor to point to.  However, most of the precedent over the past 50 or so years, including the more recent NLRB position, works against the players, and if followed would lead to a finding that the players are not employees.  I actually think there’s a middle ground where college athletes could be found employees, while leaving the recent precedents in tact, but let’s look at it in detail.

Section 2(3) of the Act states:

The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act [this subchapter] explicitly states otherwise…, but shall not include…any individual having the status of an independent contractor…,or by any other person who is not an employer as herein defined.

Clearly there is nothing in the statutory definition which would specifically exclude college athletes from being defined as employees.  No one is arguing they are excluded as independent contractors or by another section of the Act.

Going beyond the statutory language, the NLRB has published decisions where they have told us whether certain groups fit within the intended definition of an employee, and therefore could form a union.  While there isn’t a decision specifically addressing college athletes, there are several discussing graduate student employees (e.g. research assistants, teaching assistants, graduate assistants).  These cases are helpful in looking at the relationship between a student/employee and university/employer, and in particular the issue of working for educational benefit v. working for commercial benefit.

I mentioned earlier there was some good news here for the athletes; that comes in the form of a 2000 NLRB decision regarding graduates students at New York University (NYU).  In that case, the NLRB said the graduate assistants were employees under the Act.  It emphasized the fact the statutory definition is broad (“any employee”), with specifically excluded groups that are clearly defined (and of which college athletes are not one). They pointed out the United States Supreme Court has supported a broad reading of the term “employee” in several of its decisions as well.

The NLRB also said the graduate students “perform services under the control and direction of the employer,” that they are compensated by the employer, and therefore meet the common law and statutory definition of an employee.  One argument NYU made was that the students were not paid, but rather received financial aid, and therefore the students were not employees.  The NLRB rejected that argument, stating that the students did not receive the “financial aid” in pursuit of their education, but rather in exchange for services provided to the university.  The fact there was little to no academic credit received for the work supported the employee conclusion.  The NLRB also refers back to language in a prior decision where it said:

to find individuals not to be employees because they are compensated at less than the minimum wage, or because their compensation is less than a living wage, contravenes the stated principles of the Act.

NYU also tried to argue that the students’ work was predominately educational in nature, and that should outweigh any commercial benefit or impact.  The NLRB said that the fact there are educational benefits doesn’t preclude classifying the students as employees.  The NLRB closes with this incredibly strong language in support of the student/employees:

Stripped to its essence, the argument of the Employer and others is that graduate assistants who work for a college or university are not entitled to the protections of the Act because they are students. The Board’s broad and historic interpretation of the Act rejects such a narrow reading of the statute. Accordingly, we will not deprive workers who are compensated by, and under the control of, a statutory employer of their fundamental statutory rights to organize and bargain with their employer, simply because they also are students.

That sure sounds like good news for the players.  However this NYU decision, which reversed 25 years of precedent, was itself overruled in a 2004 decision involving Brown University.  In Brown, the NLRB said graduate students relationship with their school is more academic in nature than economic, and therefore the students are not employees as defined by the Act and cannot form a union.  They quoted a 1974 Stanford University decision where the NLRB laid out four steps toward its conclusion:

  1. the students were enrolled as Ph.D. candidates
  2. the students were required to conduct research to earn their degree
  3. the students received academic credit for their research work, and
  4. their compensation was not based upon the work or its intrinsic value, but instead as a manner of providing the students financial support.

The Board applied this precedent to various cases through the years, including a case involving St. Clare’s Hospital, where it specifically excluded as non-employee students those:

who perform services at their educational institutions which are directly related to their educational program.

The Board concludes by reaffirming its perspective that the Act was conceived to protect only those employees engaged in purely (or at the very least primarily) economic relationships with their employer, and that it will not assert jurisdiction over those relationships which are “primarily educational.”  The Board refers to this passage from St. Clare’s:

The rationale . . . is a relatively simple and straightforward one. Since the individuals are rendering services which are directly related to—and indeed constitute an integral part of—their educational program, they are serving primarily as students and not primarily as employees. In our view this is a very fundamental distinction for it means that the mutual interests of the students and the educational institution in the services being rendered are predominantly academic rather than economic in nature. Such interests are completely foreign to the normal employment relationship and, in our judgment, are not readily adaptable to the collective- bargaining process. It is for this reason that the Board has determined that the national labor policy does not require—and in fact precludes—the extension of collective-bargaining rights and obligations to situations such as the one now before us.

So, where do we think this leaves us with regards to graduate students?  And, more important for us here, how does it apply to college athletes wanting for form a players union?  First, it appears the fate of graduate students (and perhaps college athletes too) hinges on the composition of the NLRB at the time of the decision.  Since the Board members serve five years and are appointed by the president, the party in control of the White House often dictates its direction.  (It’s not surprising, therefore, that a Board comprised of President Clinton appointees expanded employee bargaining rights in the 2000 NYU case, and that enough members had turned over during the early President Bush years to swing it the other way in the 2004 Brown case. The five member Board is now comprised of President Obama appointees, though the validity of several of those appointments is being challenged).

Certainly there are similarities between the graduate student cases and college athletes.  However I think it’s the differences which are key.  Some commentators have said the athletes will need a reversal of the Brown case, and a reinstatement of the NYU ruling to prevail.  I see it differently.  Yes that result would obviously be one way the athletes could be granted an employee designation, but I don’t see it as the only way.  I think the Board could rule in favor of granting college athletes employee status, bargaining rights and the ability to form a union while maintaining their graduate student ruling in the Brown case.  How?  By distinguishing the athletes as a completely separate and different situation, with the following factors which lead to a finding of college athletes as employees:

  1. The “work” athletes are doing for the university are not part of their curriculum required to earn a degree.  Much was made in the Brown case about the research graduate students were doing was required or their degree.  Athletics by its very nature is extra-curricular.  (It’s true some universities allow athletes to receive physical education credits for participation in their sport, but they aren’t required and are a very minimal portion of the degree requirements.  We have yet to see a Bachelor of College Football degree which players can earn simply by playing their sport).
  2. Financial aid is dependent on participation.  The Brown case emphasized the importance of graduate students receiving financial aid regardless of whether they were working to earn it, and that pointed toward the educational nature of the relationship.  Athletes, on the other hand and in most cases, must be a member of the team in order to earn financial aid.
  3. Financial aid can be halted at any time by the university if an athlete is no longer performing athletically at what the university deems an acceptable level, regardless of whether that athlete is on track and performing well academically.
  4. College athletics at the highest levels has a significant (if not primarily) commercial component which cannot be denied, even though there are educational benefits to the athletes as well.
  5. The simple reasoning used by the Board in the St. Clare’s case and reiterated in the Brown case breaks down when applied to athletes because the services being provided by the athletes is NOT an integral part of their educational program.  (For example, a business major playing football doesn’t need to play football to earn a business degree).  It also cannot be said that the primary mutual interest for both the athletes and the university in this relationship is academic in nature.  That certainly is a factor, but the greater mutual interest of the athlete and the university is success in the athletic sphere, a commercial/economic function.

It’s hard to see how the Board would apply the Brown precedent directly to the college athletes case with these distinguishing factors.  However they could certainly make other policy arguments for not defining athletes as employees and allowing them to form a union.  

The decision of whether to define college athletes as employees under the Act is simply one step on the road toward forming a union, but it is an important one and one that could go either way.  Graduate students have dealt with a fairly dramatic swing in decisions by the Board over the past 14 years, and college athletes could certainly be in for much of the same.  One thing is for sure: a NLRB decision on whether college athletes are employees, regardless the result, would set the parameters for future fights over the issue for years to come.


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