Kain Colter Wins the First Quarter

BY STEVEN L. WILLBORN — Kain Colter won the first quarter. Colter, a quarterback, is trying to unionize the Northwestern football team. A Regional Director of the National Labor Relations Board (“Board”) recently determined that Colter was an “employee” under the National Labor Relations Act (“NLRA”) and ordered an election to determine if the team wants a union to represent it. Northwestern and the National Collegiate Athletic Association (“NCAA”) are very worried about this for fear that labeling college athletes as employees will upend the entire structure of college athletics. They are most worried about one part of that structure—the financial structure which produces billions in revenues with a primary workforce that earns, well, not much.

This is a significant victory for Colter, but it is only the first quarter. A final victory is still many steps away, and probably some years away. Northwestern has already appealed the Regional Director’s decision to the National Labor Relations Board in Washington, D.C, which the Board has agreed to review. If Colter loses there, his case will be over, and he will not be able to appeal. Even if Colter wins again before the full Board, that would only mean that the players on the football team would have the right to vote on whether they want a union to represent them. If they vote no, again, the case would be over with no right to appeal. If they win, Northwestern would probably refuse to bargain with the union, and then the case would go to the courts. This is a long game and we have only seen the opening few plays so far.

But, even if Colter’s effort at Northwestern fails, it does not mean he is not an employee under every statute everywhere. He has many potential employment law claims. For example, he may have an even stronger claim that he is an employee under the Fair Labor Standards Act (“FLSA”), which requires minimum wages and overtime premiums. If injured, he might seek damages as an employee under the workers’ compensation laws. If sexually or racially harassed, he might seek recourse under employment discrimination statutes. (Things like that have been known to happen in football.) Colter himself might be an employee under dozens of different statutes. Nationally, college athletes could make claims under hundreds of different employment statutes, each with their own definition of “employee.” As a result, Colter is an employee. Even if he is not one under the NLRA, he is one somewhere, for some purpose. Looking beyond Colter, college athletes have so many opportunities to make the claim under so many statutes that, someday, somewhere, they are sure to be classified as employees.

Northwestern and the NCAA should be worried about this. Many of its regulations simply do not align well with some employment statutes. But they shouldn’t be completely distraught. Unionization, for example, would not necessarily conflict at all with any NCAA regulations. It would only require Northwestern to sit down with the football players and talk. No violation there; the NCAA says it already does that. The NLRA does not require the NCAA or Northwestern to agree to any changes the players might demand that would conflict with current practices. None. Similarly, I do not know of any NCAA regulations that say that college athletes cannot seek full recourse if they are sexually or racially harassed.

Some employment regulation, however, would conflict with current NCAA policies. For example, the NCAA’s current practices would run into trouble under the Fair Labor Standards Act which requires modest payments for work, mostly in cash. But maybe requiring “fair” labor standards wouldn’t be a bad thing? Maybe it would even be a good thing?

So, yes, the NCAA should worry. But mostly it should plan for the inevitable day when college athletes are determined to be employees. The NCAA will have a more challenging task when that day arrives. Complying with employment laws is complicated and expensive. But that’s true for all employers. For better or worse, we as a society have decided that those complications are worth it to ensure fair wages, nondiscrimination, and the other things protected by employment statutes.

If it tries hard, the NCAA will be able to accommodate to this new world. We know that sports leagues can be managed even when the players are employees. There are a few fairly well-known sports leagues that manage to operate under that condition, such as the National Football League and the National Basketball Association. (Although their profit margins tend to be much lower than those of big-time college football teams.) It can be done.

So at the end of the game, Kain Colter may win his NLRA case and be an employee. Or he may lose and we will have to wait for the day when he or another college athlete is determined to be an employee under some other employment statute. But that day will come. And the NCAA should begin planning for that day now.

Steven L. Wilborn is a Harry A. Spencer Professor of Law at the University of Nebraska. Professor Wilborn’s article, College Athletes as Employees: An Overflowing Quiver, will appear in Issue 1 of the University of Miami Law Review’s Volume 69. The abstract to his article is available here.

Leave a Reply

Your email address will not be published.