Collective Action Instead of Litigation

You may recall my posts from last Spring and Fall about the NCAA and the efforts by former and current players to organize and to be compensated for their names, images, and likenesses ("NIL") while they competed at the college level.¹  

Things didn't turn out exactly as planned for either the Northwestern football players and their attempt to organize or for Ed O'Bannon and his fellow plaintiffs. But there may have been the dawning of a different means over the past week through which college athletes in revenue sports may well begin to realize the true value of the service that they provide.

The NLRB dismissed the Northwestern players' petition to organize not by finding that they didn't have a right to, but rather because action on the petition would not have promoted stability in labor relations. As a New York Times article on the NLRB decision notes:

Chief among the board’s reasons for declining to consider the case were the complexities of an N.C.A.A. in which one team might be unionized while others were not, and whether a union would negotiate terms that conflicted with the association’s rules. The N.L.R.B., which has jurisdiction only over the private sector, was also reluctant to wade into territory that could have raised implications for public universities. A vast majority of top-level college football programs are at public colleges, and Northwestern is the only private institution in the 14-member Big Ten Conference. ²

While the decision apparently left open for another day the issue of whether college athletes, particularly in football, are employees, "student-athletes," or both, it's difficult to imagine a scenario in the near future where either a more worker-friendly or less NCAA-beholding NLRB will find it appropriate to consider the issue.

Meanwhile, O'Bannon essentially won the battle and lost the war when the Ninth Circuit Court of Appeals agreed with U.S. District Court Judge Claudia Wilken that NCAA rules prohibiting "student-athletes" from profiting from the use of their NIL violates anti-trust law, it also found that the part of her decision that granted the former players an injunction requiring schools to compensate their athletes up to $5000 a year for the use of those images was for reasons that are not entirely clear, unsupported.

Nick Saban, Alabama's football coach, reportedly
makes $7 million a year. But the Ninth Circuit found
no justification for his players to make $5000 per year
for the use of their NIL. (photo from commons.wikimedia.org)

The O'Bannon plaintiffs petitioned last month for a rehearing of the case en banc, but regardless of the ultimate decision issued by the Ninth Circuit, the case is likely to be appealed to the United States Supreme Court, which will perhaps take a dimmer view of the finding that antitrust laws apply to college athletics.

This past week, however, "student-athletes" may have realized the power that they hold over the schools for which they play, albeit in an entirely different context. You've no doubt heard by now about the resignations of the President of the University of Missouri system (Timothy Wolfe) and the Chancellor of the Columbia campus (R. Bowen Loftin) in the wake of campus protests regarding the response, or more appropriately the lack of response, to racial incidents on the campus.

While the protests had been going on for weeks, they truly only gained momentum after the school's African-American football players announced that they would boycott all of their remaining games until the demands of one of the protesters, who was on a hunger strike, were met. One of his demands was that Wolfe resign, which was ignored until the players got involved and threatened not to play, beginning with Saturday's game against BYU, a contest that would have required Mizzou to pay BYU a $1 million penalty if it was cancelled.

Suddenly, more than two months after the first racial incident that drew attention, but less than two days after the announcement by the players, Wolfe held a press conference at which he said that out of his "love" for his alma mater he was stepping down. The same day Loftin announced his resignation.  And, as was pointed out in another New York Times article, the timing can hardly be coincidental.

Arguably, the Missouri players' action was undertaken for more admirable reasons than collective action regarding compensation for their work for their schools. But if it hasn't already dawned on them, it certainly has on others (including several in the most recent Times article), that this same kind of action could be easily undertaken to support payment for college players.

What's to stop the squads of the two football National Championship game finalists from talking it over at one of the free outings that the NCAA so generously provides them and deciding, "hey, what if we just decided not to play next Monday unless we start getting a share of this gigantic pie?" Would the NCAA's reaction be any different than Wolfe's was, facing a potential boycott and the loss of millions of dollars from ESPN?

Perhaps that is the only way that the NCAA will be forced to abandon its mantra of "student-athletes" while it and its members continue to rake in the cash and pay the coaches of those athletes more than any other employee. The courts and quasi-judicial bodies seem unwilling to upset the status quo.

But perhaps the status quo is about to change.

---

1 The link to the article no longer works, but can be found here: http://web.uslaw.org/wp-content/uploads/2014/09/2014_Fall_Winter_USLAW-Magazine1.pdf at pages 12-13.

2 A link to the full text of the NLRB's decision is here: https://www.nlrb.gov/case/13-RC-121359^↩

Sports Hypocrisy All Our Own

The hypocrisy of organized sporting institutions (particularly those that were founded as "amateur" associations) is not limited to FIFA, nor to European-based fiefdoms. But one of the elements that enables FIFA's and the Olympic Organizing Committee's, continuing high-handed corruption is the lack of a governing body to, well, govern them.

Not so in the United States, where the NCAA is facing attacks in several judicial bodies by the individuals who have made it and its member schools billions of dollars, the same folks that the NCAA insists on calling scholar-athletes.

The Through the Looking Glass logic of the NCAA is hard to deny, particularly after the recommendation of its football rules committee this month that offensive teams be charged with a delay of game penalty for snapping the ball within the first ten seconds of the play clock. You read that right: delay of game for playing too quickly. The proposed rule has been dubbed the "Saban Rule" after Alabama head coach Nick Saban, who supports the rule apparently because "run and shoot" offences provide opponents with the opportunity to actually compete with a school that routinely has the best recruiting class in the nation. Whether the fact that only one of every five college coaches support the change matters more to the NCAA than what Saban desires remains to be seen.

While court action is unlikely with regard to the Saban Rule, the NCAA does face serious challenges in several other areas which may well force its hand with how it administers college sports. First came former UCLA basketball player Ed O'Bannon's law suit against the NCAA and its corporate partners EA Sports and the Collegiate Licensing Company seeking compensation for players who either appeared in video games or in televised broadcasts while in college.

O'Bannon's case has slogged its way through the legal system and reached a tipping point in late December 2013 when U.S. District Court Judge Claudia Wilken certified a class of former college players (comprised of O'Bannon and other named plaintiffs including Bill Russell) that sought licensing fees from EA Sports and CLC, but ruled that they could not proceed as a class on their claims against the NCAA for the use of their likenesses in televised broadcasts.

The ruling may appear a victory for the NCAA, but it still faces the claims made by the individual plaintiffs in the case, and it could have to face the daunting prospect of trying to resolve not one but hundreds of individual cases brought in all 50 states instead. Just as importantly, because the certification of the class against EA Sport and CLC would give the former athletes the rights to their own images while in college, the NCAA sought the stay of a ruling regarding a similar class in another class action which was denied by the United States Supreme Court.

In the back-and-forth between lawyers after Judge Wilken's ruling was issued, the NCAA repeated its mantra regarding "student-athletes" and the many benefits to which they are entitled in yet another attempt to justify the fact that it and its member schools make billions of dollars from the labor of their football and basketball players (and pay their coaches millions of dollars at the same time). 

Meanwhile, Northwestern University football players have taken steps to organize and join a union. The critical issue in that case, is, of course, whether football players are employees of the university or are merely (wait for it ...) student-athletes. The NLRB held hearings last week in Chicago in the case, in which Northwestern introduced a number of witnesses to testify that its athletes (who, with their 97% graduation rate, are probably more "students" than at most U.S. universities) receive academic support and are limited in the amount of time that they are allowed to practice or otherwise participate in their sport.

Former Northwestern quarterback Kain Colter, who is leading
the effort of its football players to organize (photo from Deadspin).

If past cases are any indication, the players may have a tough go of it. An effort by graduate assistants at Brown University to organize last decade was denied by the NLRB, which found that the assistants were primarily students, not employees, and reversed a prior decision of the Board to the contrary. But left unanswered is the question of why one cannot be both. "I don't know that there's anything inconsistent with being a student and an employee," noted Craig Becker, the AFL-CIO's general counsel.

The ultimate decision in the NLRB case may rest on the next Presidential election, as it's unlikely that it will be submitted to the consideration of the entire Board until 2016. Just as in Brown case's George W. Bush's Board reversed precedent regarding the organizing efforts of graduate assistants at private institutions, so too the next Board is likely to be comprised of a majority of pro-union or pro-employer members depending on whether a Republican or Democrat next sits in the White House.

Regardless of the outcome in that case, however, the O'Bannon case is likely to have a more immediate impact, both because it appears to be nearing it apex (trial is scheduled for this June) and because it will likely hit the NCAA where it hurts the most - its pocketbook and that of its member institutions. It's hard to see the NCAA's position regarding compensation of players for the use of their likenesses as anything other than archaic, last ditch attempt to cling to the same arguments that Major League Baseball made and ultimately lost long ago regarding its reserve clause, which essentially made players indentured servants to their mother clubs.

While the NCAA has a valid point that players do receive at least the opportunity to receive a higher education through their scholarships, the value of that education so pales in comparison to the billions of dollars flowing to the NCAA and its members that it is difficult to perceive that as adequate or just compensation in the 21st Century. While O'Bannon's case against the NCAA may or may not ultimately succeed, one suspects that the recent movement toward paying football and basketball players some amounts in addition to their tuition and room and board may be an avenue to at least limit whatever future financial bleeding may result from his case and thousands of others that will follow if it is successful.