Rebecca Livengood, J.D. Harvard Law School 2012, Law Clerk to the Honorable Stewart Dalzell, U.S. Eastern District of Pennsylvania.

UPDATED: An earlier version of this post mistakenly referred to NCAA Bylaw 15.3.3.1 as prohibiting schools from offering athletic scholarships for longer than one year.  The NCAA recently lifted this prohibition. 

The NLRB began holding a hearing last week in response to a petition by football players at Northwestern University for a union election. So far, the athletes’ demands have focused on enabling players to receive a college education, and at the hearing, senior quarterback Kain Colter emphasized the incursions football obligations make into studying and class time.

Discussions of reforming college athletics traditionally focus on the question of compensation, and the NCAA responded as if the aim of this petition were no different: “This union-backed attempt to turn student-athletes into employees undermines the purpose of college:  an education.” But in press appearances surrounding the NLRB petition, the players–led by Colter and with the support of the National College Players Association (NCPA) and the United Steelworkers union–have not focused on compensation.  Instead, Ramogi Huma, president of the NCPA, has said that players will initially seek “improved concussion and medical protection, guaranteed scholarships and additional money to cover college attendance expenses.” Where less than 2% of NCAA football players will go on to play professionally, and where they are 17.7% less likely to graduate than are other full-time male students at their schools, demands that would help players stay in college through graduation and ensure that they can pay medical bills incurred while playing football seem likely to further “the purpose of college.”

For this reason, the petition has received support not just from commentators like Joe Nocerra, who has long advocated paying college football players, but also from opponents of compensation like Jonathan Chait. Chait sees the recent union movement not as an effort to professionalize the relatively few college athletic programs that generate revenue but to give all players a seat at the table to pursue their goals as students.  The gains won through collective bargaining, Chait suggests, could help athletes “balance commitments to sports with their ability to take advantage of their educational opportunity and to have the chance to live a semi-normal college life.”

As Professor Sachs has explained, the NLRB established the analytical framework likely to govern the players’ petition in Brown University.  Under Brown, whether an individual is an employee in a university context turns on whether his relationship to the university is “primarily educational” or primarily economic.  Nicholas Fram and T. Ward Frampton lay out a compelling case for why college football players have a primarily economic relationship to the universities for whom they play: college football players devote more than forty hours per week to their sport (during weeks when they’re playing at home, athletes commit about fifty-three hours to football, and the time commitment is greater when athletes are traveling for away games), academic faculty do not oversee this work, and unlike the graduate students’ teaching time the NLRB considered in Brown, time spent playing football cannot be considered “part and parcel of the core elements” of an education.

It is worth noting that the fact that the Northwestern players’ demands concern their interest in receiving a degree does not undermine the economic nature of their relationship to the university.  The NLRB can find that the players are a group of employees with a collective interest in securing adequate health care and conditions conducive to receiving a college degree, in the same way that other groups of employees have an interest in receiving a pension, subsidized child care, and the like.

And even if the Board does recognize players as employees, as Professor Sachs and others have reported, Northwestern’s petition would affect only athletes at private universities, because state labor law governs employees of state universities.

But whether athletes organize at private or public universities, the employment relationship is between the athlete and the school — the university as employer and the athlete as employee.  The NCAA does not play a formal role in that relationship, but the specter of its sanctions may frustrate players’ goals even if they do gain recognition as employees, for some of their most fundamental demands are governed not by schools’ policies, but by NCAA regulations.

For example, Colter and Huma have called for four years of guaranteed tuition if a player leaves the team for reasons outside of his control.  This would address the problem of oversigning, which Chait has explained:

Currently, every football program has a limit of 85 scholarships it can hand out at any given time.  Traditionally, football players who are granted scholarships get to keep those scholarships for four years, unless they flunk out of school or commit serious violations of school rules.  Recently, some programs, mostly in the Southeastern Conference, have figured out that if they can nudge weaker players off the roster, they can make room for more recruits every year.

 Players who are cut thus lose their scholarships and may not finish school.

The NCPA and the Northwestern players have rightly identified ensuring continued scholarships as a primary interest of college football players.  NCAA Bylaw 15.3.3.1 long prohibited schools from offering any athletic scholarship that would last longer than one year, to be renewed at the school’s discretion.  Players unsuccessfully challenged this regulation in Agnew v. National Collegiate Athletic Association, and when the NCAA lifted this rule, it did so at its own discretion, rather than pursuant to a court order. The NCAA still bars players from profiting from the use of their likeness while they are playing, and under Bylaw 19.7, the “restitution” bylaw, it “threatens schools with sanctions if they obey any temporary court order benefiting a college athlete, should that order eventually be modified or removed.”

These are only a few of the regulations that constrain schools’ ability to improve conditions for players.  Even if athletes gain recognition as employees, the challenge of how to use their leverage to influence NCAA regulations will remain.