Yakkin' About College Sports Labor Law

In which a lawyer and a... non-lawyer figure out what an NLRB ruling means for the future of the NCAA.
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David Roth: So, if I understand the NLRB ruling on the Northwestern football players' attempt to unionize, it seems like the end of all we've ever held dear in terms of college sports as a safe space for bugged out feudalism, and a big step down the road to full communism. So, you know, promising.

David: Which is to say that it mostly seems pretty modest and incremental, if also necessary and good and the sort of thing that only double-stuff barnacles like Bob Knight or Facebook Rage Uncles could really be upset about. My question for you, as a law-talking guy, is what the finding actually means.

David: You explained what the NLRB found on Twitter, and I think I mostly understand it.The bit I don't get is the NCAA's response, which seems NOT to address the finding at all, beyond the "they're not employees" thing.

Charles Star: It is a pretty good rule that anything the NCAA says in public is pure spin, but really, the scholarship-athletes-are-employees ruling is by far the most important one. The rest of the arguments that the NCAA made are secondary, nerd-legal, and not easily explained (or worth explaining) in a press release. You want to hear them anyway?

David: Yes. Try to use some profanity or something, though. Sex it up, for pete's sake.

Charles: First, the NCAA argued that the proposed “bargaining unit” was too narrow because it didn’t include walk-ons or non-scholarship athletes on the team. The NLRB said "meh" because a walk-on can quit the team without any material change in his status as a student. He was already paying his own way, so who cares if he breaks a team rule or quits?

David: That seems obviously correct.

Charles: Well, it's also devious, because the inclusion of non-scholarship players would have had other complicating effects on the unionization effort. Less commonality of interest, players who don’t get paid are obviously not employees, and so on. So the NCAA was trying to expand the bargaining unit out of viability.

Charles: Then the NCAA tried to fit the case into the Brown graduate assistant case, but the NLRB basically said being a TA is part of the learning part of being a graduate student, whereas football has literally nothing to do with—and, if anything, undermines—the educational part of being a student, what with the time spent at practice and traveling and the mild traumatic brain injury.

David: This seems to be the PR gambit a certain type of college sports sentimentalist is going to seize on. "They're not employees, that's disgusting. They're fine young men, Our Warriors. Don't cheapen it by recognizing the economic realities of their situation."

Charles: There was also a technical argument about whether the players are temps, but it isn’t very interesting. The court said no to that, anyway. And as for the employee designation, the judge said “they get paid, the money is purely in exchange for playing football, and the coaches sure act like overbearing bosses in every possible way, from controlling their schedule, to enforcing team rules, to making the players accept their friend requests on Facebook. They are employees who get paid to play football while also trying to fit classes into their non-football time.”

David: To me, the union's goals seem fairly modest!

Charles: That’s taking a narrow view, though. The specific demands being made today might be modest; the RIGHTS that the ruling could secure are not.

David: They are not asking to be paid, or to burn anything down. They're just asking for a less odious and unfair version of amateurism. I suppose there are some time-bombs strapped to that recognition, though, and that the NCAA's issue is that players being labeled employees opens up a whole new field of rights and such.

Charles: I should have let you get there first, Grasshopper. The current demands may as well be considered a PR strategy for the players. Getting paid in an open labor market is the real endgame.

David: This would seem to suggest to me that the NCAA would do well to try to engage the union. But I know that's not really done anymore. If you work with a union, CNBC hosts will do the Mr. Roper tinker-bell gesture every time you go on TV. No respect at the steakhouse.

Charles: That's not how management operates except in the rarest of circumstances. They only give what they deem they have to, on their own terms. And the NCAA won't engage the union unless they absolutely have to because, right now, they have all the leverage.

David: Management going to management, I suppose.When any compromise is unbearable, any compromise is unbearable. I wrote about this at SB, but it seems to me like a less despicable/unfair version of amateurism would actually be a workable compromise for the NCAA. And a good thing for the actual humans involved, which is also nice.

Charles: You are right about that. The NCAA even hints at that in their press release when they say, "Over the last three years, our member colleges and universities have worked to re-evaluate the current rules. While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college." But they won't voluntarily do it at the request of the union or without fighting back against the NLRB.

David: Ah yes. It would be terribly poor form not to spend two years litigating this.

Charles: It isn't just about not showing weakness, though. It’s actual leverage. In the absence of a union what have players done? NOTHING. This is the first real pushback since the Fab Five asked to wear baggy shorts. And players have no leverage so long as the NCAA is a cartel. The prospect of a Final Four walkout damn near gives me a boner but it will never happen.

David: I don't want it to happen, you know? I just want everyone to be human to each other.But yeah, that's not happening.

Charles: Sorry, kid. The players didn't make the rules. And since they aren't getting treated like humans I won't pretend that they have to be on some Gandhi shit in response.

David: I guess if you have to burn something down, burn this down.

Charles: Revolution now. Forming a union is a MODERATE response.

David: I agree! And the union's goals are all reasonable things that seem as if they'd be reasonably easy to grant. Guarantee scholarships, create a fund to help them graduate—live the actual college sports ideals! No one's going bankrupt behind that.

Charles: It isn't a stunt, it is a legal process. Also if a Republican wins the White House at any time during the litigation, the NLRB will literally rule that the players are slaves.

Charles: The scholarship bit isn't the real fight, though, and the NCAA knows it. That's why they'll fight. Because even if Northwestern's demands are reasonable, Northwestern's players are still Northwestern's players. What do you think the demands will be for basketball players at Duke, assuming that the players aren't shot for attempting a union in North Carolina.

David: Right.

Charles: Northwestern was an inspired choice. Private and in the heart of liberal labor country. Vanderbilt is almost immunized from unionization by right-to-work laws.

David: It'd be interesting if there were a future in which certain conferences offered different benefits than others. Also confusing. But if you were guaranteed a four-year education at Northwestern and had to hang fire year-by-year at some oversigning-ass SEC school...

David: ...I mean, you'd probably still go to Alabama. But it would change some things.

Charles: I don't think Northwestern could afford on the books what the Tuscaloosa Booster Rooters can off the books.

David: I think non-disgraceful amateurism could create some healthy competition, especially where basketball is concerned. You'd want to get rid of the NBA's age limits—or, anyway, I would want that, because I always want that—but then you create a real two-tiered system that works for every player. Go get the money now if they'll have you, sure. But the other option is pretty appealing, too—you get a four-year commitment, to use as much of as you like, and a degree at the end if you earn one. Not a bad deal for the schools, either, but I'm not going to lose any sleep over how all this impacts, like, LSU.

Charles: If the players aren't your number one consideration in evaluating college sports I think you're thinking about it wrong. There isn't really a number two consideration that isn't subsumed in general blind adherence to capital or self-interest in entertainment.

David: Both very popular subsumptions, though. Two great tastes, taste great together.

Charles: And look, the prospect of an amateur alternative is nice until you realize that as soon as you lift restrictions on payment, the schools that are serious will pack up their fainting couches about paying players and start openly bidding on five star recruits. You would be shocked (not shocked) at what Jameis Winston is worth on the open market.

Charles: This works the same way that a salary cap makes sense only to dolts who don't get that it is a protection racket. If the league cared about competitive balance, they would socialize the profits of the joint enterprise. They care about cost suppression and competitive balance is an excuse for cost suppression, which someone else pays for.

David: At least that's standard contemporary corporate operating procedure, though. The NCAA economy is so perverse and gold-plated and feudal and fucking WEIRD that it's tough even to assess it. There is nothing to compare it to. So you are stuck on the Potter Stewart test for when it's wrong. Which, obviously, we've been knowing-it-when-we-see-it for some time now.

Charles: Eh, I don't think it is that complicated. The schools formed a cartel and created a baroque and voluminous set of rules that protect the cartel at all costs. They don't let the member schools fuck each other over (much) and they definitely don't let the players step out of line, and those lines are arbitrary as hell. Even where you think it should be sane and normal and uncomplicated, you get things like the Nebraska-Omaha track star kept out of the NCAAs because the school is transitioning divisions, and because they choose to interpret the rulebook like the demon spawn of Commander Data and Justice Scalia.

David: All this old-growth weirdness. The rulebook only grows, never shrinks. There is no meaningful compliance with something that metastatic. I guess you assume the answer is always "don't" and go from there. Or don't.

Charles: Even if "do" seems humane and unobjectionable…

David: It's probably illegal.

Charles: "I gave this kid a tissue because he found out his dog died and was crying." RULING: Two game suspension for player and graduate assistant, and the kid must repay four cents.

David: Maybe just think of the NCAA as a marching band. Maybe try that. Try that for one more year.

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