How The NCAA Can Reform in the Wake of the NLRB Ruling
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Student-athletes or athlete-students? Since 1956 the NCAA has claimed that academics comes before athletics, but last week National Labor Relations Board (NLRB) Region 13 director Peter Sung Ohr ruled that football players at Northwestern University are employees rather than students—and that as a result they have a right to unionize.

Not surprisingly, Northwestern is appealing, but the case they hope to make has largely been undermined by some key policy decisions the NCAA made, unilaterally, between 1965 and 1973.

In 1956, the NCAA finally accepted the idea that scholarships could be awarded entirely on the basis of athletic merit. As Michael Oriard chronicles in Bowled Over, this concession was the culmination of a tortured evolution. When college football, such that it was, was inaugurated on an autumn afternoon in 1869, the players were recruited from among the student population. But as the sport rapidly grew, pressure to admit athletes, who may or may not be academically qualified or able to pay their own way, grew. There was no uniform policy for how to handle the growing tension between academic and athletic demands. Schools in the South tended to offer grant & aids, while schools in the North and West allowed private donors to sponsor athletes. Recriminations festered until 1948, when the NCAA sanctioned the awarding of financial assistance if there was demonstrated financial need. Demonstrating such need was so unworkable that eight years later the NCAA decided to allow scholarships to be awarded entirely on the basis of athletic merit.

The NCAA, according to Oriard, was acutely aware that they were open to charges of professionalism—and more to the point, to the charge that athletes were employees. After all, their compensation appeared to be entirely tied to athletic prowess.

I say appeared because the NCAA, under the leadership to Walter Byers, adopted some crucial measures to suggest otherwise. Part of the solution was good semantic PR: the use of the word scholarship, rather than grant & aid, suggests that athletes are scholars, and the term student-athlete is supposed to make it clear that they are students first and athletes second. More substantively, the scholarships were guaranteed for four years, even if the athlete never played or even practiced. Doing this allowed the NCAA to argue that the award was primarily academic because it was not at all contingent upon athletic participation.

By 1973, the NCAA made a subtle but crucial amendment: Scholarships were renewed annually at the coach’s discretion. The ostensible purpose of the rule, which took shape during the late 60s, was to allow coaches to impose standards of behavioral conduct that were stricter than those imposed on other students. But in reality this meant that coaches had more leverage to control athletes, for example, make them lift weights more, and run off the ones that were failing athletically (what was then delicately referred to as ‘dead wood’).

The problem, which may be finally coming home to roost, is that this policy change effectively meant that the players were athlete-students. They did not just spend more than 20 hours a week on athletics, which has been the case for a long time; they now risked losing their scholarship if they did not play by the coach’s and athletic department’s rules. From a contractual point of view, they had far more demands and no longer enjoyed the same rights as other students, even those on academic scholarship.

The NLRB had previously rejected a unionization attempt by graduate students working as teaching and research assistants at Brown University. The differences between the two cases are quite instructive.

First, the NLRB found that graduate employees were primarily students. In fact, graduate students are supposed to work less than 20 hours a week, or the equivalent of a .49 FTE, and many academic departments have to produce a General Duties and Responsibility Statement that realistically estimates how the work can be completed in keeping with the FTE. What’s more, supervisory coercion and unrealistic expectations are subject to grievances and retroactive compensation. NCAA athletes are also supposed to be limited to 20-hour workweeks, and schools have to breakdown how that is supposed to be possible. Ohr, however, showed that being an athlete is a fulltime job during the season, worse during preseason, and that the projections Northwestern used were entirely unrealistic.

Second, graduate teachers serve roles that are directly tied to their education, for example, a graduate student teaching philosophy is planning to write a dissertation in philosophy, and maybe even hoping to get a job in the field. Playing football may teach all sorts of valuable non-cognitive lessons; planning and perseverance spring to mind. But these lessons have no direct relationship to studying, say, engineering.

Third, graduate students are supervised by school faculty, who largely confine their jurisdiction to matters directly related to job performance. Student-Athletes, by contrast, are supervised by coaches, and there is almost no limit to their purview. Rare is the faculty member, but common is the coach, who mandates a curfew or insists on becoming a Facebook friend. This distinction is not trivial because it suggests a strict employer-employee relationship rather than a student who is free to explore her or his intellectual and personal development.

And finally, graduate students cannot be kicked out of a graduate program because they decide not to be graduate teachers or researchers. The NCAA eliminated the analogue for athletes by 1973.

The good news for Northwestern, and the NCA, is that most one of these issues could be redressed. Athletes could be restricted to .49 FTEs during the season, with realistic GDRSs and penalties for transgressions. Coaches could relinquish, or at least scale back, supervision. And most importantly, the NCAA could reinstitute guaranteed four-year scholarships. Tying football directly into the educational goals of athletes is probably a bridge too far, but the NLRB might be willing to overlook that if the other issues were addressed.

These probably would be hard pills for the NCAA to swallow, but the alternative, as Ohr’s ruling made clear, might be employee status for college athletes, including the right to unionize.

–Ken Pendleton

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