Jim Dey: Labor expert says College athletes' union effort will bring benefits

Jim Dey: Labor expert says College athletes' union effort will bring benefits

When former Northwestern University quarterback Kain Colter testified this week in favor of unionization for major college athletes, he was calling a classic misdirection play — trying to persuade the defense he was going left when he's really headed right.

At least that's how University of Illinois labor law expert Michael LeRoy sees it. Viewing the formation of a union representing Division I football and men's basketball players as legally impractical, LeRoy said the obvious intent is to pressure the lords of big-time college sports — the NCAA — into concessions that mimic what union representation would provide.

"I can't think of a better way for the players to improve their lot," LeRoy said.

His are no idle musings. As an academic, LeRoy anticipated players starting to speak up for themselves as college sports have become increasingly flush with television money, to the point that he wrote a 60-page article published in 2012 by the University of Wisconsin law review.

The title foreshadows its comprehensive contents: "An Invisible Union for an Invisible Labor Market: College Football and the Union Substitution Effect."

If Xs and Os seem complicated to the Jacks and Joes, labor law is even more Byzantine.

For starters, what are the rules under which union negotiations would proceed? The vast majority of Division I athletic programs are operated by public universities, with a relative handful of institutions like Northwestern, Notre Dame and Stanford being private.

Private sector employment is governed by the National Labor Relations Act, while public employment rules vary in the 50 states.

"I'm telling you as a matter of fact that (unionization) is impractical," LeRoy said.

The unionization petition process led by Northwestern athletes is pending before the National Labor Relations Board, which started taking testimony this week in Chicago. But LeRoy said it could take years to get a definite answer to the threshold question the athletes' unionization petition poses — whether college athletes are students attending a university or employees of the university.

"This is not going to be decided by the start of the next football season," LeRoy said. "Some of these NLRB cases take 10 years to resolve."

But the publicity campaign that will put pressure on the NCAA is in high gear. Colter's appearance before an NLRB hearing board drew wide media coverage. The former quarterback complained that being required to attend morning practices prevented him from enrolling in courses that would have allowed him to attend medical school and charged that there are questions about whether treatment of injuries he received would be paid for by Northwestern.

"I like to think of it like the military/Navy SEALS. They spend months and weeks preparing for operations. It's the same thing as football. We spend months getting ready for our operations," Colter said, contending all the effort constitutes effective employment.

Legalities aside, LeRoy characterized the players' concern as one of equity involving an ever-growing financial pie that largely excludes the individuals who generate the revenue.

"The issue is whether the heavy commercialization of Division I college football has transformed the student-athlete model to the point of its being an employment relationship," he said. "There are various ways of looking at it, but there is not a clear way to answer it."

He said players devote 40-plus hours per week during the season to football, and "that looks like a job." LeRoy said they definitely contribute something of value to their universities, another factor in determining whether their efforts could be interpreted as requiring compensation. Finally, he said, they generate huge amounts of income competing in an enterprise that is an "apprenticeship for the NFL."

On the other side of the equation, athletes are essentially volunteers who receive valuable academic scholarships.

"No one forces them to sign those (scholarship) contracts. In fact, they often are thrilled to do it," LeRoy said.

Further, LeRoy said, they are required to attend school, as opposed to minor league baseball players, and they receive valuable degrees if they take advantage of their academic opportunities.

"Quite a few of these players come out with serviceable degrees," he said.

So it's a mixed bag, the contents of which fall on both sides of the issue.

The better solution than unionization, LeRoy said, is for the NCAA to discuss with player representatives ways to meet their needs that do not involve unionization and employee compensation.

"That would have the union substitution effect I'm talking about," he said.

The approach, LeRoy said, would not only address substantive player issues but the public relations pressure building on the NCAA.

"The money they pay to coaches is shockingly high," he said. "I think the public has a pretty good sense of who is benefiting from this and who is not."

LeRoy said his approach would require enabling congressional legislation to establish a "limited form of representation for the athletes."

But the result could be agreement on a variety of player concerns, including long-term medical coverage for athletic-related injuries, additional benefits that cover the shortfall between the cost of attending school and athletic scholarships, and increased educational benefits.

The Chicago Tribune reported from the NLRB hearing that Colter's aggressive testimony indicated that he was "ready for a fight." Obviously so, but in what venue — a court of law or public opinion?

LeRoy advised observers not to bite on Colter's fake. He speculated this NLRB petition will not be resolved by talks at a union negotiating table, but that the hearing "puts pressure on the NCAA to come to some kind of table" to work out player issues.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or at 351-5369.

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