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Wildcats on Strike

Big Labor hopes to recruit Northwestern football.

By 2.12.14

UPI
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Labor unions in this country are struggling. Union membership as a percentage of the overall workforce remains flat and the prospects for growth of their ranks remain bleak. Unions are sorely in need of new untapped markets from which to fatten their treasuries.

So, the recent announcement that the United Steelworkers are seeking to unionize Northwestern University football players shouldn’t come as a surprise. There are 66,000 Division I football players in Division I of the NCAA. That’s a great new market for organized labor to tap for new dues revenue. It’s an opportunity that has unions licking their chops.

NCAA basketball players may be another target of union organizing, but they are a much smaller target. There are approximately 900 NCAA basketball teams, each with only 12-13 players, so unions would be chasing only about 10,000 potential dues payers. But, given their stagnant membership it’s more than likely that union organizers will be moving from the gridiron to the hardwood shortly (if they haven’t already).

The motivation for these aggressive union organizing efforts is quite obvious. While the nation’s union membership held steady at 11.3% last year, losses among state and government workers reveal an ominous downward trend for organized labor.

Unions added about 282,000 new members in the private sector as the economy improved. But that was partially offset by the loss of 118,000 members in the public sector, as state and local governments continued to face financial pressure from shrinking budgets. So, all in all the outlook for unions is grim.

But, the task of unionizing college athletes will be a daunting one. The threshold question will be whether players are “student-athletes,” as the NCAA has steadfastly insisted, or are in reality college and university employees whose right to unionize is protected by the federal law. That issue will initially be determined after a full hearing by an Administrative Law Judge of the National Labor Relations Board.

The ALJ’s decision can be appealed to the full NLRB in Washington and then to a federal court of appeals. From there the case could be heard by the U.S. Supreme Court, but only if the court agrees to hear the case. No matter which way the ALJ initially decides the issue, appeals are likely.

The “student or employee” issue has been confronted elsewhere in the university setting. In the leading case in the area, the NLRB ruled that so-called “graduate assistants” (teaching and research assistants) at Brown University could not unionize because they were not employees, but primarily students. That decision will play a major role in determining the status of Northwestern football players and whether they are employees covered by federal labor laws or primarily students who are not permitted to unionize.

Of course, if these college and university athletes are in fact employees, they will be entitled to the protections afforded by numerous other state and federal statutes. They will be entitled to worker compensation for job-related injuries, they will be protected by the workplace health and safety provisions of OSHA, and they will be protected from job discrimination under the provisions of Title VII of the Civil Rights Act of 1964, to name just three.

So, the stakes in this effort to unionize Northwestern football players are high. The NCAA and all other Division I universities will be following the case closely. Unions have a huge stake in the case as well, as the prospects for unionizing tens of thousands of other football and basketball players hang in the balance.

It will be interesting to see what kind financial and public relations support the NFL and NBA Players Associations might invest in the Northwestern organizing effort in the interests of “union brotherhood and solidarity.” Moreover, given the enormous stakes involved on all sides, the Steelworkers union may enjoy enthusiastic backing and robust financial support from the vast treasury of the AFL-CIO.

Stay tuned. This landmark battle is going to take some time, as it plays out before the NLRB, in the federal courts, and in the court of public opinion.

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About the Author

Gerald D. Skoning is a Chicago lawyer who specializes in labor and employment law.