Photo by James DiBianco

A decision last week by a National Labor Relations Board regional director allowing football players at Northwestern University to unionize might give unions new motivation to seek out members on university campuses. Though the NLRB ruling applies only to private institutions, the board’s past decisions have spurred more unionizing activity at public universities, where state laws govern who can organize. The nation’s many well-funded men’s football and basketball programs, which grant thousands of scholarships at public universities, would be a tempting target for government unions looking to expand membership.

In his March 26 decision, Peter Sung Ohr ruled that football players at Northwestern could organize into a union because of the extensive time and commitment they put into their sport, and because players were the crucial cogs in a highly profitable university program. Ohr noted that player scholarships and other aid at Northwestern amount to $61,000 annually per individual. Observing that the Northwestern football program generated $235 million in revenues and $76 million in profits between 2003 and 2012, Ohr argued that players were recruited principally for their contribution to the team, not as students. “The record makes clear that the Employer’s scholarship players are identified and recruited in the first instance because of their football prowess and not because of their academic achievement.”

Ohr dismissed the university’s argument that the precedent in a 2004 case, in which the board ruled that graduate teaching assistants at Brown University did not have the right to unionize, also applied to college athletes. In that case, the NLRB determined that graduate assistants were primarily students, admitted to the university because of their academic achievement, and didn’t qualify as employees with a right to organize. Big-time college program football players are quite different from TA’s, Ohr concluded.

Northwestern has already said that it will appeal the case to the NLRB, though that body is now dominated by union-friendly appointees of President Obama. Still, it’s likely that even if it loses there, the university, backed by other major college sports programs and the National Collegiate Athletic Association, will try to take the case all the way to the Supreme Court, given the stakes involved. Were the current ruling to stand, it might well reshape Division I collegiate sports.

Regardless of how the appeals play out, however, history suggests that public universities will come under pressure in union-friendly states to allow their athletes to organize. The case of the Brown University teaching assistants is instructive here. The NLRB originally ruled in 2000 that the graduate teaching students at New York University had a right to form a union under federal labor law. Students there quickly voted in favor of a union. Four years later, a somewhat reconstituted NLRB—with appointees of President George W. Bush now in the majority—essentially reversed itself in the Brown case. That temporarily ended the movement of graduate-student organizing at private universities, except in a few rare cases were university administrations agreed to allow collective bargaining with graduate-student groups.

But the attention that the NYU and Brown cases generated provided a new organizing jolt to graduate students on public university campuses, where state labor law, not federal law, holds sway. Graduate assistants in the public sphere had begun lobbying for bargaining rights decades earlier, and in a few states—including New York and New Jersey—they had won the right to organize even as NLRB rulings in private college cases prohibited it. After 2000, such organizing had increased at public universities: graduate students at University of California campuses and at UMass, Oregon State, the University of Michigan, the University of Rhode Island, and three campuses of the University of Illinois were all able to unionize, thanks to state court rulings or state regulatory decisions. Even after the NLRB’s 2004 Brown case, which effectively deprived private graduate unions of their legal status, the pace of organizing picked up in the public sphere—including at the massive California State University system, where, beginning in 2006, some 6,000 graduate assistants over 23 campuses unionized.

One irony of the organizing among graduate students, however, is that public unions have so far found themselves somewhat outflanked by opportunistic private labor groups, which saw an opportunity to bolster their own ranks on campus. Locals of the United Auto Workers, for instance, have organized graduate students at the University of California, California State, UMass, and the University of Washington as part of the UAW’s strategy to expand its ranks in the face of continuing membership losses among auto workers. More recently, 600 graduate assistants at New York University voted to affiliate with the UAW when the university’s administration, after years of opposition, agreed to bargain collectively with the students.

College athletes would certainly be a bigger union prize than graduate assistants. The NLRB ruling targets those universities with cash-rich, big-time sports programs—like Division I college football and basketball. Among the 125 elite schools that participate in what’s known as the Football Bowl subdivision, the majority of programs are profitable. Many of these same schools also excel at Division I college basketball. The emoluments they bestow on student-athletes are likely to be in the range of the $61,000 annually Sohr found in the Northwestern case. That’s a sum far beyond graduate assistant remuneration.

Of course, the best of these athletes will be joining unions soon, anyway—when they graduate and head to the National Football League and the National Basketball Association, both of which have powerful players’ unions. In the meantime, however, they may constitute a mini-bonanza for public and private unions on campus.


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