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.

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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^↩