Optimism and Pessimism (Mostly Optimism) About the Unionization of College Football Players

-- Posted by Neil H. Buchanan

Earlier this week, a regional director of the National Labor Relations Board (NLRB) issued a decision that could be the turning point in the relationship between universities and the athletes who represent them on football fields.  The director concluded that football players at Northwestern University (one of fourteen current members of the Big 10 conference) are employees of the university, and thus are eligible to hold a vote to form a union.  Although there are many miles to go in this legal marathon, this decision could end up changing everything in college sports.

There are, of course, a daunting array of legal questions that follow from this decision.  Some have straightforward answers, such as whether this decision (if ultimately upheld) would apply to athletes at state universities.  (No.)  Others are generating excited discussion among various groups of legal analysts.  My colleagues in tax law, for example, are already having a field day (no pun intended) discussing the many questions raised by the potential taxation of employee-athletes.

I might end up weighing in on a number of those legal issues in future posts.  For now, however, I want to think aloud about some of the implications, both positive and negative, of allowing college athletes to unionize.

Regular readers of Dorf on Law might recall that I have at various times expressed great skepticism about calls to pay cash compensation to college athletes.  Most recently, I wrote last December about the disturbing tendency among most observers to treat full-ride scholarships, including free room and board at top universities, as somehow worthless.  (Links to all of my earlier posts and columns about college sports can be found at the beginning of that December 5 Dorf on Law post.)

I also have criticized the overwrought claims about a "plantation mentality," and other inapt imagery, that others have used to attack the National Collegiate Athletic Association (NCAA) and its current policies regarding student-athletes.  That is not to say that I am in any way a fan of the NCAA.  Its procedures are often arbitrary and capricious, and it has if anything allowed far too much cheating to go unpunished in the interest of maximizing revenues.  (Star athletes get special treatment from the NCAA, when TV ratings are threatened.)

I am, in fact, overall rather optimistic about the possible effects of unionizing college football players and allowing them to bargain collectively with their universities.  A union could, and should, focus less on immediate big-money payoffs and more on matters that could actually improve the lives of all college athletes, especially later in their lives.  The Northwestern players' two main concerns "were better health care and limited practice hours."  If players were allowed to unionize, and if those two issues are what the new union puts front and center, that could be great news.  Despite my skepticism about other issues, I have always agreed that the players deserve to be provided with better health care and (especially) disability insurance, and that they should not lose their scholarships if they become injured (or leave the team for other legitimate reasons).

More importantly, the essence of my objections to pay-for-play have been predicated on the idea that athletes should actually be allowed to be students, rather than being encouraged to go for short-term cash.  Even though the evidence shows pretty convincingly that college is still a very good deal for scholarship athletes (with Northwestern itself leading the way with a 97% graduation rate), there is no doubt that too many college athletes -- almost certainly a small minority, but not a trivial one -- are not benefiting from the educations that they are supposedly receiving.

Of course, there is a possible paradox.  If a union succeeds in forcing universities to allow their athletes to become real students, then they might no longer be eligible to be unionized.  The director's ruling, notably, is based on the conclusion that the players are not "primarily students."  If they become students again, they would presumably be subject to earlier NLRB rulings that have prevented students from unionizing.

But we can put that aside for now.  A more pertinent question is whether a union would actually follow through on an agenda to reduce practice time and improve health care.  It sounds good now, but would a union really leave all of that money on the table, when the highest-profile athletes would be clamoring for million-dollar paydays while still in college?  Actually, I think that they might.

The best place comparison, of course, is the union that represents players in professional football, the National Football League Players' Association (NFLPA).  Although the NFLPA is much smaller (representing only 50-60 players on each of 32 teams, as opposed to the 90 or more college players on each of hundreds of teams), and its players are professional, there are plenty of similarities.  For one thing, the average professional career lasts only three seasons, meaning that the NFL (which some players say is an acronym for "Not For Long") employs its typical employees for shorter terms than do colleges.  Colleges do not have 14-year veterans, of course, but those guys are true outliers in the NFL, too.

And the good news is that the NFLPA, despite its many disadvantages vis-a-vis a league that holds an antitrust exemption, is fighting the good fight.  Most importantly, perhaps, the NFLPA is the reason that the league still has a 16-game season.  The owners have been trying for years to move to an 18-game schedule, but the players' union has resolutely refused.  Given that the NCAA has allowed colleges to go from 11- to 12-game seasons, and to add conference championship games, and now is adding a layer of playoffs (along with oddities like allowing teams that schedule games at the University of Hawai'i to schedule a 13th regular-season game), it is important to have a counterbalance against the economic pressure to physically exploit the players even more than they are already being exploited.

Moreover, the NFLPA has been the driving force in trying to get the league to deal with head injuries, fighting the causes and consequences of concussions and the dementia that has become epidemic recently among retired players of the 1970's and 1980's era.  Early indications from medical studies suggest that the head injury problem starts at the college level (and even before), and there is plenty of evidence that NCAA schools are not taking this seriously enough.  If the players' union pushes hard on that issue, it would have earned everyone's respect.

Note also that having an outside entity (in this case, the players' union) forcing all teams to adjust their practice times downward (and to protect players better than they do now) would have the effect of benefiting players without compromising competition.  That is, every individual team currently has an incentive to push its players harder, to try to gain a competitive advantage.  This inevitably pushes up the demands on the young athletes.  The union would solve that group action problem, allowing everyone to dial it back without fear of losing an edge.  (There are always temptations to cheat, of course, but the new norm would surely center around less practice time.)

So, there are some reasons to think that unionizing college football players could have some very good consequences, significantly improving the lives of the players, and potentially forcing universities to act more like universities than Fortune 500 corporations.  I have already noted one reason for pessimism, which is that the union could instead try to simply turn college football into a pay-for-play semi-pro league, with health concerns and education left behind.

Even if that were not to happen, however, there are other reasons for concern.  Although the reduction in practice times, and the increased attention to head injuries and other health issues, would be a plus for players without being costly to the universities, other goals of a players' union could end up inadvertently harming players, because of their inherent costs.  My preference, for example, would be that a football scholarship be irrevocable (other than for obvious reasons like flunking out) for four years, and that the players whose playing careers forced them to reduce their class schedules would have their scholarships extended for one or two years to allow them to graduate.

That requirement, along with other player-friendly initiatives (especially university-paid disability insurance) would increase the per-player cost of running a football program.  This could have the unfortunate effect of contracting the size of football squads, which could then have the effect of causing fewer players to play more minutes (and to be forced to play even when badly injured).  The high-profile playing positions have recently become even more injury-laden, of course, with situations like the University of Florida Gators having to play their 4th-string quarterback last season, when the three young men ahead of him suffered season-ending (and potentially career-ending) injuries.

Some of the most brutal play, however, is seen on special teams, especially kickoffs, where little-used players try to prove their mettle by taking insane risks that end up injuring themselves and their opponents (and sometimes even their teammates).  The injury potential is so extreme that the NFL has even considered eliminating kickoffs entirely.  It is at least possible that, as a result of the reforms that I support, college teams could reduce their rosters to the point where the special teams players suffer more debilitating injuries, because there are fewer bodies available to share the punishment of the games' worst plays.

I do not view this concern as a reason to abandon the non-salary goals of the college players' union.  I offer this example as merely one possible side-effect of changing the economics of the game, of which there are surely others.  Although I have been skeptical of the idea that players should be paid in cash, rather than scholarships, it is abundantly clear that the players deserve to have the rules changed in ways that would redirect economic resources away from athletic departments and toward the athletes.  The side-effects need to be managed, of course, but they are not a reason to abandon reform.