Earlier this year, a group of Northwestern University (NU) football players led by team quarterback and captain, Kain Colter, took a bold and unprecedented step toward forming a labor union to represent college athletes. Colter, along with Ramogi Huma and Luke Bonner, both former collegiate athletes, founded the College Athletes Players Association (CAPA) and, just last week, concluded arguments before the National Labor Relations Board (NLRB) where CAPA implored the NLRB to allow the Northwestern players the opportunity to unionize. Although a lengthy appeals process is almost a certainty regardless of the outcome, the NLRB’s decision (expected next month) could forever change the landscape of college athletics.

In a way, the dispute was inevitable. As the National Collegiate Athletic Association (NCAA), television networks, coaches and the schools themselves have seen profits from college sports soar into the hundreds of millions of dollars over the last decade, it was only a matter of time before those who generated the revenue wanted in on the action. However, the players maintain that their efforts to unionize are about more than just the money. They cite other objectives such as: securing payment for sports-related medical expenses after graduation, increasing safety regulations, easing restrictions on transferring, and limiting schools’ abilities to reduce or eliminate scholarships. The players believe that collective bargaining, a power they would attain (at least against private universities if not the NCAA) if certified by the NLRB, would provide the most effective means to achieve these goals.

The issue will ultimately come down to a question that has been debated for years – are college athletes students or effectively employees? The answer will turn on the nature and scope of the relationship between NU and its players. The NLRB will grapple with issues such as the extent the school “controls” the players’ schedules, the discretion the school has in “hiring and firing” players, and evidence of “compensation” to the players. Importantly, it is not whether NU treated the athletes as employees but rather if they can treat the athletes as employees that matters. Some players alleged that the substantial time commitment required to play football precluded them from excelling in the classroom. Colter, for example, asserted that the rigorous football schedule rendered him unable to meet the demands of NU’s pre-med classes (thwarting his dream of becoming an orthopedic surgeon). Others, however, including a player who earned a degree in mechanical engineering, testified before the NLRB that they had no issues meeting their obligations both on the field and in the classroom.

While CAPA has a long fight ahead, they may have picked an opportune time to bring their case. The NLRB is currently dominated by Democrats, the major party that has been most supportive of organized labor, and thus the Board may be more willing to allow student groups to unionize. CAPA, itself, has been backed by labor unions, most notably the United Steelworkers union which has agreed to cover CAPA’s legal expenses. The NLRB’s decision could very well be influenced by politics, as was the case when a Clinton-appointed NLRB majority approved a union for New York University (NYU) graduate students, only to have that decision reversed by a Bush-appointed NLRB majority four years later.

Whether or not the Board certifies the union, the case and CAPA have brought attention to, and should propel, necessary changes to college athletics particularly in the context of player health and safety. With all of the new information about player concussions and the ramifications of such, the colleges and the NCAA, itself, owe it to the players to do everything in their power to keep the athletes safe and in good health. What happened this past season at Grambling State University, where players boycotted a game because of unsanitary practice facilities that left many with staph infections, never should have occurred. Unless the NCAA steps up its commitment to its athletes, collective bargaining may be necessary to ensure that all college athletes get the type of treatment and support they deserve.

Zack Klinger is a J.D. candidate, ’15, at the NYU School of Law.

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