Divisions of Labor

FEATURE: College athletes speak out against unionization

Virginia Tech quarterback Logan Thomas / AP
April 6, 2014

Brandon Kerns knew he was hurt the second he contested the pass. He felt like a dog—a big one—had latched on to the back of his leg. A hamstring. Not the type of injury a man can will himself through, but then, not every man has the chance to play starting cornerback for a Division I college football team. Kerns was putting in 30 to 40 hours per week lifting, practicing, rehabbing, and watching film. He spent as much time studying coverage as he did studying business and his goal was in reach. Except that hamstring.

"Coaches drop you from their thoughts with that kind of injury," he said.

He tried to play, but the leg wouldn’t cooperate. He rehabbed for two weeks before getting back onto the field only to reinjure it the second he reached full sprint. He repeated that cycle for six weeks before he demanded an MRI. This was no muscle pull, but a partial tear. He never suited up again. So much scar tissue had built up around the tear that Kerns hasn’t been able to run at full speed without pulling the muscle since he suffered the injury seven years ago.

Kerns was just the type of player that the College Athletes Players Association, a fledgling labor organization sponsored by the United Steelworkers union, says it wants to help. But the NLRB decision that branded student-athletes as employees capable of union membership doesn’t apply to Kerns, who played football at Cornell University from 2004 to 2007. The Ivy League doesn’t give out athletic scholarships, which the NLRB says is necessary to form employer-employee relationships. Even if it did, he was enrolled at Cornell’s Agriculture School, a New York statutory school subsidized by state government. Only players at private colleges can form a union under the NLRB’s logic.

Kerns is no fan of the status quo in Big College Football. The NCAA’s ban on athletes earning money for their performance on the field doesn’t sit well with Kerns, who is now an MBA student at the Stanford School of Business, especially because the time commitment to the program precludes athletes from taking side-jobs or earning the marks needed for elite careers.

"Student athletes, similar to non-student athletes, should have the ability to pursue entrepreneurial endeavors, including the commercialization of their brand," he said. "If there is value to an athlete's signature, I do not believe the NCAA should prevent the athlete from selling autographed merchandise."

Despite his numerous complaints about the treatment of student athletes, Kerns remains "strongly against having unions with college athletics."

"I worry about the broader negative ramifications of classifying athletes as employees that would hurt the sport and the integrity of higher education, such as strikes and potentially firing athletes who do not perform," he said. "My situation was indicative of the culture of college football that is beyond union rules. At the end of the day, the coach says who starts."

According to union partisans, college football and basketball are little more than multi-billion dollar industries. That money flows directly to the schools and the NCAA. Players come away with free tuition and a little bit of money for living expenses. You can forgive players for wanting a piece of the pie, but the NLRB’s decision to classify athletes as employees threatens to "open a can of worms" and will turn teammate against teammate, according to some legal experts and former college athletes.

David Phippen, a management-side labor attorney with Constangy, Brooks & Smith, said the employee classification will not simply translate to money for athletes, no matter what the Steelworkers say. If a scholarship is considered compensation, then taxes must be paid—a steep price given $40,000 tuition rates. And if an athlete is an employee, isn’t he entitled to workplace protections? Will OSHA require coaches to not run wide receivers over the middle where they’re liable to get drilled by a linebacker? Will coaches be prohibited from forcing underperforming teams to run wind sprints? Will athletes that transfer schools be prosecuted for stealing trade secrets when they play their former teams? Does a Canadian hockey recruit have to apply for a work visa or student visa? Could white athletes sue colleges for disparate impact since they are under-represented on most college basketball programs?

The NLRB doesn’t say.

"There’s a whole lot of employment and tax laws that all become issues the second you say student-athletes are employees," Phippen said.

There are many ambiguities to the decision, but one thing remains clear: athletes will be treated differently based on their scholarship status, their school, their sport.

The NLRB says that only scholarship athletes should be considered employees since they are the only ones deriving compensation from the school. Walk-on players will be left in the cold when unions arrive on campus. As a result, one former Northwestern University football player opposes the efforts of Wildcat quarterback Kain Colter, who is spearheading the drive for unionization. Walk-ons are indistinguishable from scholarship players.

"While this is definitely a huge step towards eventual reform, I’m not convinced this will be the direct cause of any changes," said the football player, who requested anonymity because of his ties to the community. "It threatens to split up each of these communities through its intrinsic discrimination against walk-ons, other athletes, and any perceived effects it may have separating players from the general student body."

He said that one of the strengths of Northwestern’s team is its preferred walk-on program in which non-scholarship students receive the same free medical care, tutoring, and mentoring services as the recruited players. The NLRB decision could make these players second-class citizens, despite the fact that they make the same sacrifices and put in the same time as the players enjoying a free education.

"You would never know if a player was on scholarship or not. A union really threatens this program, and may also have unintended consequences on other sports," he said. "The fact that it is backed by the steelworkers makes me think they are expecting a big payout from this, one way or another … it makes me uneasy knowing there is some agenda with that as one of the goals."

Phippen, the labor attorney, said that the NLRB’s focus on scholarships and the profitability of Northwestern football does not reflect the realities of existing labor law.

"Colleges use scholarships to make them come to the school. It was never intended as an employer-employee relationship," he said. "There’s also a lot more to the employee title than profit or loss, just ask the employees suing bankrupt companies for back pay."

The profits universities generate from big time sports, such as football and basketball, are used to sustain other sports—lacrosse, baseball, track and field—that are money losers, as well as women’s teams. The NLRB’s focus on profitability disturbed Kristi Dosh, a sports attorney.

"The NCAA requires schools playing football at the [Football Bowl Subdivision] FBS level to carry 16 sports [including eight women’s sports], but most carry many more. Those could definitely end up getting the axe if the athletic department needs to come up with more money," she said in an email.

Ashley Andress, who ran track at Florida State University from 2003 to 2007, said unionization could distort the perception of student-athletes, an issue that her alma mater has enough trouble overcoming given its status as defending FBS champions. She agrees that football players should receive compensation for the profits they generate, but the employee designation is the wrong way to go about it.

"[Athletes] should not be treated differently because of how bad it would be for the culture of the schools. There would be problems internally between all the athletes," she said. "It just seems to open a can of worms."

The employee designation cuts at the core of the purpose of college athletics, according to Phippen, but not everyone sees it that way. Liberal comedian Stephen Colbert tweeted his support for the unionization effort on Tuesday.

"College athletes want to get paid? Who do they think they are, the coach/staff/ concessions guy/janitor?" he said.

Colbert’s disdain for the working poor aside, there’s a fundamental difference between those who play and those who work at college football stadiums across the country.

"What the NLRB missed is the difference between the normal job paid to mop the floor: you don’t get any personal benefit from mopping. If you play on the football team, you get a hell of a lot out if," he said.

Published under: Big Labor , NLRB