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Commercial Litigation

Keeping up with the Joneses: How will public institutions react to private institutions allowing collective bargaining for its players?

June 20, 2014

Commercial Litigation

Keeping up with the Joneses: How will public institutions react to private institutions allowing collective bargaining for its players?

June 20, 2014

Back to Fish's Litigation Blog

 

The world of college sports was thrown into turmoil in March when the National Labor Relations Board’s Chicago Region ruled that players at Northwestern University are “employees” within the meaning of the National Labor Relations Act and are, therefore, eligible to join a union.  But that decision (the “Ohr” decision) does not apply to players at public colleges.  Therefore, an obvious issue is: will public colleges allow for an un-equal playing field with respect to their private college counterparts?

The unequal playing field is easy to understand.  While players may have the right to unionize at private institutions and bargain for benefits such as better health insurance, long-term disability benefits, or educational services, players at public institutions do not currently have that right.  Such a difference between private and public institutions might incentivize prospective student athletes to attend a private institution over a public institution.

Whether public institutions allow student athletes to unionize will ultimately be up to the respective state governments.  Many states allow for collective bargaining rights for its public employees, but other states, such as Texas, bar collective bargaining for most public employees except police officers and firefighters.  But if private schools in Texas like Baylor and SMU—due to the ability for athletes to unionize—start gaining a competitive advantage in sports over schools like the University of Texas or Texas A&M, members of the Texas legislature might push for a third exception to allow unionization of college athletes (particularly those members of the legislature that are alumni of those public universities).  The Texas legislature has intervened, or tried to intervene, on numerous occasions in the past when it concerned athletics at Texas universities (See, most recently, Texas A&M’s move to the SEC).

Since March, the effort to expand the Northwestern decision to cover athletes at public universities is at least gaining some traction.  For example, a North Carolina union of public workers has invited student athletes at the University of North Carolina and North Carolina State University to join as state employees.  Presidents of Pac-12 universities have also proposed several reforms, including increased scholarships, lower athletic time demands, and a greater voice for players in conferences and the NCAA.

The Ohr decision is currently under appeal, so there is always a chance that it is reversed and athletes at private institutions are not even allowed to unionize.  But if the Ohr decision is affirmed, the effects could include more than simply unionization of athletes at private schools.  It may ultimately put pressure on public institutions to allow collective bargaining—they must, of course, keep up with the Joneses.

Stephen Fox recently spoke with Grant Stinchfield from The Stinchfield Report” talk-radio show about the unionization of college athletics and is available as a replay, below.

 

Article co-authored with former Fish attorney, Stephen E. Fox

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