NLRB’s Ruling a Game Changer: Football Team Forms First Union | Vanderbilt Journal of Entertainment & Technology Law

In 1953, Ernest Nemeth, a football player at the University of Denver, sought workers’ compensation after suffering a back injury while playing football. In a 6-1 decision, the Colorado Supreme Court held that Nemeth was “employed” by the university to play football and was therefore entitled to weekly payments of $11.87 under the state’s workers’ compensation law. In an interview with the local newspaper, Nemeth expressed hope that “other athletes may benefit by [the precedent] under the workmen’s compensation laws of their states.” Soon thereafter, Walter Byers, executive director of the NCAA coined the term “student-athlete.”

Student-athletes, of course, are not entitled to employees’ benefits. But six decades after Nemeth’s victory, college football players are arguably more like “employees” than ever before. Football easily accounts for the most revenue earned by athletics programs across the country. It generates millions of dollars in ticket sales, donations, media broadcast deals, and sales from branded novelties, sponsorships, and ads. This past fiscal year, the University of Alabama athletics department alone reported a surplus of $21.2 million (bringing it to a total surplus of $106.5 million since 2006).

Of course Alabama got that money from its championship football team. And of course many sports fans hardly think of their favorite players as “student-athletes” anymore. Players, fans, and even coaches have long called for a change in the legal treatment of football players.

Now, it appears that change is finally going to come. In an opinion last week, the National Labor Relations Board (NLRB) Director for Region 13 held that scholarship players for the Northwestern football team are “employees” under the National Labor Relations Act and are therefore allowed to unionize. The football team’s union, called the College Athletes Players Association, is demanding the expansion of medical coverage, increased safeguards for head injuries, fairness in the system for investigating NCAA rule violations, and athletic scholarships that correspond with how much it actually costs to attend college.

Although Northwestern has already expressed its intent to appeal, the NLRB Director’s ruling is an important decision according to proponents of changing the legal treatment of college athletes. Still, its scope is limited. It applies only to scholarship football players at Northwestern, which is a private institution. Most major football programs belong to public schools, which are governed by state law and are outside the scope of the NLRB’s jurisdiction. Furthermore, the ruling might also conflict with Title IX, which compels college athletics to ensure that the benefits male and female athletes are receiving from the school are roughly equivalent. If the College Athletes Players Association uses its collective bargaining power to gain benefits for the all-male football team, then there will be an issue as to whether such benefits comply with Title IX’s equity requirement.

In the end, the Northwestern case will have to survive several levels of appeal in both administrative and judicial forums. If it does, then there is no doubt that the NCAA and universities alike will have to change how they operate the thriving college football business. If the College Athletes Players Association is anything like other players unions, it will become a force to be reckoned with.

Morgan Morrison

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