By: Bradford L. Livingston, Esq.

After last week’s post “College Football Unions: Throw the Flag for a False Start,” several readers asked what might happen if the NLRB is eventually upheld in finding that Northwestern University’s scholarship football players are “employees” under Section 2(3) of the National Labor Relations Act and therefore able to unionize. The short answer is that nobody knows, but the game almost certainly won’t be played on Northwestern’s gridiron, Ryan Field.

Every college football team has an offensive and defensive coordinator drawing up its game plans, and in this high stakes contest the offensive coordinator for CAPA (the College Athletes Players Association union affiliated with the United Steelworkers that is seeking to represent college athletes) must recognize that the game cannot be played against just Northwestern’s defense. Much of the basis for the NCAA’s micromanagement is assuring that each team has a level playing field (this is not an early April Fool’s joke: over the past several years there was much NCAA consternation over whether its rules allowed cream cheese, jelly or peanut butter to go with the players’ bagels). And while it’s occasionally entertaining to watch the Harlem Globetrotters trounce the Washington Generals, season after season with leagues comprised of a few Globetrotter and a bunch of Generals teams won’t fill the bleachers or Saturday television airwaves.

So if just Northwestern or even all sixteen other other private colleges and universities that play major college football were to unionize, the remaining 85% of their public institution peers would be beyond the NLRB’s reach. And whether it’s the NCAA as a whole or any individual league, playing by different rules just won’t work. Can the Pac-12 allow Stanford or USC to pay extra stipends to its players while Oregon and Arizona State, under NCAA rules, could not? Can Northwestern negotiate a collective bargaining agreement with reduced practice time and yet thrive in the Big 10 against Penn State or Nebraska? (Potential labor agreement, Article XVII, Section C: “During weight room training, (i) players may not be required to bench press more than 60 pounds nor perform more than 5 reps; (ii) players may voluntarily bench press more than 60 pounds and perform more than 5 reps; and (iii) any voluntary bench pressing of more than 60 pounds and/or 5 reps will not be the basis for decisions regarding starting status or playing time.”). With differences in terms and conditions among teams, could the NCAA’s rules even survive?

And that has to be a dilemma for CAPA’s offensive coordinator. If the NCAA’s rules and limitations on scholarship athletes are overturned, negotiating one-off deals with individual colleges is not a winning game plan. Whether public or private, only a few universities (think Michigan, Notre Dame, Ohio State, or Texas) generate the revenue from some combination of sold-out 100,000+ seat stadiums, logo apparel and television rights to engage in an athletic arms race to pay the most highly sought-after five-star recruits. What’s to prevent Florida State from offering six-figure bonuses with its letters of intent? Instead of the NCAA maximum of 85 total scholarship players on the team, why wouldn’t the Crimson Tide sign that many recruits every year (some bloggers believe a version of that already occurs throughout the SEC)? Filet mignon on the training tables for the teams that can afford it, and PB&J sandwiches for the teams that cannot.

The inevitable disparity in talent as a few teams outbid others will make college football (and basketball) less competitive. In 1991, the Richmond Spiders upset second-seed Syracuse in the first round of the NCAA basketball tournament. If Duke or North Carolina can pay to get the best high school hoops players, what chance will a Richmond have then? The few “haves” will have more, and the “have nots” will get what’s left. This eventually would lead to less interest, fewer tickets sold, lower television viewership, less advertising revenue, and lower television rights – and lower pay for the players CAPA wants to represent. But CAPA’s offensive coordinator undoubtedly sees this, and doesn’t want the game called off.

So, CAPA’s solution has to be a level playing field for all. And unless a gridlocked Congress acts (odds roughly equal to those of winning Warren Buffett’s billion dollar NCAA bracket pool???), CAPA knows it can only achieve this by obtaining a collective bargaining agreement to cover the entire NCAA, or at a minimum, each individual conference or perhaps a “superleague” of conferences and their member universities. That’s why professional sports succeed: each team in the league plays by the same salary cap, free agency rules, minimum wage scales, and other terms.

CAPA’s offensive game plan for a level playing field extends beyond the NLRA and collective bargaining, and is instead based in part on antitrust law. Because of a doctrine known as the “non-statutory labor exemption,” the terms of a labor contract —including ones like the NFL’s, MLB’s, NBA’s or NHL’s collective bargaining agreements that “fix” wages and other terms of employment among multiple individual employers—are immune from antitrust claims. Stated simply, because the product of collective bargaining can be argued to stifle competition, the contracts — whether with a single employer or multi-employer association — negotiated by organized labor have been largely exempted from antitrust scrutiny.  This labor antitrust exemption has been further expanded upon to extend not only to the owners’ agreements with players (and restrictions on player movement, etc.), but to the leagues’ agreements with broadcasters and others (which might likewise resolve some of the other cases pending against the NCAA). So for CAPA, the game plan likely includes a labor contract to cover all the teams in any league or even the NCAA. While Northwestern’s football players may have been the first target, CAPA’s goals are much broader.

So how does Northwestern’s defensive coordinator respond to this game plan? One solution might be to simply sit on the ball so CAPA can’t play its game. Just as the University of Chicago abandoned its major college football program in 1939, Northwestern could decide to no longer offer athletic scholarships. The NLRB’s Regional Director specifically found that “walk-ons” or non-scholarship players are not “employees” under NLRA Section 2(3) who are entitled to unionize. Therefore, if a college or university does not offer athletic scholarships, CAPA has no football to kick. And after all, college sports thrive in the NCAA’s Division III, where athletic scholarships are prohibited. (Okay, let’s be realistic: this will not happen, at least among the major athletic conferences.)

But even assuming that CAPA succeeds in playing its game and gets a labor agreement covering one or more athletic conferences, all may not be well on campus. While fans may still fill stadiums to see competitive games among teams playing by the same rules, the NLRB’s decision has other implications for colleges and their students on scholarship. Under the NLRB’s ruling, almost any group of college students who “work” for their scholarships might be considered employees and eligible to unionize under the NLRA. So imagine what might happen if the scholarship recipients in Ohio State’s marching band were to unionize and go on strike. When the Wolverines and Buckeyes (both then represented by CAPA and covered under its labor contract with the Big 10) meet in their late November rivalry game, what will the fans think when the Ohio State marching band – known for the tuba player who dots the “i” in its script “Ohio” – ends their pre-game festivities with only an “Oh.” As last week’s post noted, the NLRB should have punted.