The nation's universities are all a-lather after this week's ruling that members of Northwestern University's football team are employees with the right to collective bargaining. Although years of appeals are likely, there's good reason for the worry: The opinion in Northwestern University v. College Athletes Players Association, as written, cannot easily be limited to football.
The decision, by Peter Sung Ohr, a regional director for the National Labor Relations Board, has a surface appeal, because it fits the familiar meme that college football players are exploited. Maybe they are, maybe they aren't; as I try to teach my students, however, rather than leading the cheers for or against controversial opinions, we should take the time to read and understand them. Reading the opinion in Northwestern University v. CAPA leaves one rather breathless.
Let's begin at the beginning. Northwestern is without question an employer. Collective bargaining rights only attach if the players are employees. The question of whether an individual is an employee for purposes of the National Labor Relations Act is governed by the common law definition, which is stated in the decision this way: "A person who performs services for another under a contract of hire, subject to the other's control or right of control, and in return for payment."
The payment, Ohr says, is the grant-in-aid scholarship. The contract is the "tender" the player must sign, under which he agrees to abide by a lengthy set of rules. But this much wouldn't distinguish football from any other scholarship sport -- or, for that matter, distinguish football players from any other students who receive grants-in-aid.
Ohr's conclusion that football players are different rests on three prongs: that the school derives significant income from the efforts of the players; that the coaches exercise enormous control over the players' lives; and that once we include practice and travel, the players themselves invest large amounts of time in football.
Now, in the first place, it isn't entirely clear what it means to say that a football program generates revenue -- or how many profitable football programs exist. As the economists Rodney Fort and Jason Winfree point out in their book "15 Sports Myths and Why They're Wrong," only a very few football programs in the country generate much profit -- and that number grows smaller when overhead is properly allocated. One can't tell from Ohr's opinion what costs he is allocating to football in determining that it earns a profit.
More to the point, as Fort and Winfree note, colleges derive utility even from sports that don't earn money. Evidence suggests that students are attracted to schools with good sports teams -- some as participants, many more as fans. (When I was an undergraduate at Stanford, we took enormous pride in our tennis and swimming teams.) In addition, reviews of the economic literature suggest that alumni are more likely to give when the school's teams are successful -- or if the teams were successful when the alumni were students.
And there is a further, simpler reason that Ohr's reasoning cannot successfully distinguish between players in sports that make money and players in sports that don't: The college would prefer that all of its sports become sufficiently popular to cover their own expenses. That some fail to do so is beside the point. Employees don't lose collective bargaining rights because their employer loses money.
In fact, nothing about the test applied in this decision can reasonably be limited to revenue-generating sports. Once we accept the premise that the grant-in-aid counts as payment, the definition applies to all students who receive athletic scholarships -- not just those who happen to play the big-money sports. Ohr's opinion emphasizes the degree of control that football coaches have over the lives of the players -- the hours of practice, the dress code, the disciplinary rules, and so forth -- but other student-athletes operate under similar restrictions.
Ohr points out that the football players typically spend more than 40 hours a week on the sport. But a 2010 survey conducted by the NCAA found the problem -- if it is a problem -- to be widespread. Members of men's football teams at the major schools reported spending 43.3 hours a week at practice. Men's baseball was at 42.1, men's basketball at 39.2. The average of all other men's sports was 32 hours -- well beyond the 20-hour NCAA limit cited by Ohr as one reason for considering the athletes employees.
The situation for women's sports was not appreciably different. True, women's football isn't an intercollegiate sport, but participants in the most popular women's sport -- basketball -- reported spending 37.6 hours a week at practice, almost as many as the men. And the figure for all other women's sports was 33.3 hours -- higher than for men's sports. (The median number of classes missed during the season was also higher for female than male athletes, and women were significantly more likely than men to say that they would prefer to spend less time on athletics.)
It's true that the football players on average spend more time each week on practice than on academics, but the differences among sports are relatively small. (The single mysterious outlier is baseball, where the athletes report spending 10.4 hours more each week on the sport than on academics.)
There are other weaknesses in Ohr's opinion -- he struggles, for example, in his effort to distinguish the NLRB's 2004 ruling that graduate teaching assistants are not employees -- but the heart of the problem is that he cannot in the end separate football from most other sports. There are plenty of problems in college athletics, obvious to even the most casual follower of the headlines. It's hard to see how collective bargaining by student-athletes is going to fix them.
This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.
(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama” and the novel “The Impeachment of Abraham Lincoln.” Follow him on Twitter at @StepCarter.)
--Editors: Michael Newman, Stacey Shick.
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