A Minute With...

Collective bargaining expert Michael LeRoy

2/24/2014  8:00 am

Employment and labor relations professor Michael LeRoy is an expert in collective bargaining and the author of a legal casebook titled “Collective Bargaining in Sports and Entertainment: Professional Skills and Business Strategies.” In an interview with News Bureau business and law Editor Phil Ciciora, LeRoy discusses the ramifications of Northwestern football players filing a union election petition with the National Labor Relations Board.

After the hearings at the National Labor Relations Board the week of Feb. 17, what do you foresee happening?

image of professor michael leroyI think what’s likely to come out of this is a protracted process that will play out over the coming years, along with a lot of negative publicity for the NCAA and pressure behind the scenes for the NCAA to provide more compensation and more representation for student-athletes. I think the NCAA has already taken steps in that direction, but I wouldn’t call them bold steps. I think wise heads in the NCAA will ask the question, “What more can we do for players that’s still within the bounds of the student-athlete paradigm?”

What do you make of the NLRB hearing officer expressing doubts about the merits of former Northwestern quarterback Kain Colter’s claim that playing college football is equivalent to a job?

That does not surprise me. That’s to be expected because this would be a precedent-setting case, and you don’t have administrative law judges do that as a matter of course. He would be looking at cases involving college research assistants and graduate assistants. We’ve had those cases before, and they’ve resulted in split outcomes by the labor board. But the point is, if you look at the traditional responsibilities, control and evaluation, a person in a lab cleaning beakers or recording experiment results is much more like an employee than a football player.

But what NCAA football players have going for them is the sheer volume of activity – the 40-plus hours of activity per week. The NCAA itself performed a self-study where they surveyed NCAA Division I football players, and the median result was that 43 hours were spent per week on football-related activities throughout the fall term. Well, that looks like a full-time job. And you can’t run away from the fact that these guys are sweating and toiling and making institutions, on a combined basis, hundreds of millions of dollars each year. That’s a very compelling argument for employment.

Here’s an analogue. The Obama administration’s Department of Labor has been cracking down lately on unpaid college internships, and their own guidance says if you have a college student doing something for an organization, and it’s professionally related and they’re getting academic credit, that’s an internship. But if that student is conferring a benefit to the organization and not receiving academic credit, that’s considered employment.

If that is your paradigm, then you come closer to saying Kain Colter and his teammates are employees. Sure, they’re getting an education, but they’re not getting credit for playing football. And they are conferring a tremendous benefit upon the school that goes beyond the athletic department. There are reputation benefits that accrue to a school just by virtue of being on TV.

What happens next?

First of all, it will take years to get to an election. Kain Colter, ironically, will never vote in this process. He can start the process, but in reality, the question is what high school or junior high player who eventually will go to Northwestern – will that player be prepared to vote for a players’ union?

So that’s one variable. But an even bigger variable is that it puts Northwestern in the very awkward situation of violating NCAA rules against compensating players. If you have a ruling that says the football players are employees, and a majority vote for union representation, Northwestern would then be under a duty to bargain over wages, hours and terms and conditions of employment.

So, on the one hand, Northwestern is in the strange position of being subject to an unfair labor practice if they don’t talk wages with football players. But if they do talk wages, they look like a rogue program. If you’re the NCAA or Northwestern, you’re in a real conundrum.

It leads me to conclude that traditional collective bargaining is an impractical vehicle for this situation. But it’s certainly not a useless exercise if you’re Kain Colter. I can’t think of any other way to push the NCAA to make meaningful reforms for players.

You’ve written about how college football exploits players in an “invisible labor market.” Is an “invisible union,” or what scholars call a “union substitution effect,” an increasingly viable play for players to make an end-run around the amateur-professional boundary?

I think it’s more operative now than ever, and it is exactly what’s happening. Now you’ve got a petition; it’s front and center news; the NCAA is not happy about it. They’ve been largely silent about it. But they can’t like what’s going on – nor can they ignore it.

It’s fair to say that it’s such a one-sided story in favor of the players that the NCAA has to be cognizant of how bad it looks. Many people are talking about multimillion dollar contracts for coaches, TV deals for schools and very pricey upgrades for facilities.

But at the end of the day, what are players getting at Northwestern compared to what they got 30 years ago? A better weight room? Yes, they are receiving a tuition-free education, but other than that, nothing else out of the NCAA’s enormous treasure chest has trickled down to them.

What can the NCAA give student-athletes as compensation?

What the NCAA has talked about in the past is a stipend. There was a resolution that was put to the NCAA membership to give all the NCAA Division I football players a $2,000 stipend. How did they come to that number? My guess is that is the scholarship shortfall. It’s very common for football players to have to take out loans to pay off the rest of their bill. Every school has a scholarship shortfall, and the range is from $500 to $5,000.

That is another damaging argument against the NCAA, that they don’t even cover 100 percent of the cost of education. It’s hypocritical to say that you’re putting guys through school when they still have to borrow money.

The large schools were all in favor of it; the small schools all said that it would break the bank for them. And there are far more poor schools than rich schools in the NCAA. So the membership voted it down.

There are certainly a lot more interesting things the NCAA could do for student-athletes. For example, the NCAA could take away the penalty for transferring schools on the condition that there is an available scholarship at another school. But that, too, gets tricky, because it’s essentially free agency for college athletes, but it certainly merits discussion. But it wouldn’t change the nature of the amateur athletic status.

Another question is, what do you do with players who suffer concussions and brain injuries or other life- or career-threatening injuries? The answer is there’s no compensation for them, there’s no disability fund. They’re getting hit just as hard as the pros, but the NFL guys have a disability plan, and they even have a dementia supplement. College football players get nothing if they’re injured while playing. So if you break your neck or become a quadriplegic, you can’t apply for worker’s compensation.

It’s hard to reconcile that when college football is the economic juggernaut that it is today. It’s really unconscionable that they can essentially walk away from players with broken bodies. If you’re going to damage people like that and you’re going to make lots of money off of them, it’s probably a good idea to talk to them about how to compensate them for their injuries.

 

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