The NLRB’s chief counsel issued a memo saying football players at 17 private colleges are employees and can seek better working conditions.
Inside sports business
While still quarterbacking for Northwestern University in 2013, Kain Colter began seeking better working conditions for his fellow players.
Initially, he says, his coaches and administrators were privately supportive. But that quickly changed once they realized this wasn’t a passing fancy and Colter was committed to taking his fight to a national level.
“I think that was to be assumed,’’ Colter told me last week. “They are the beneficiaries of the current system and getting paid a lot of money — specifically, the coaches, commissioners and athletic directors. And so, any change to the system, they were going to fight it.’’
Two weeks ago, Colter saw his quest move beyond hypothetical to possible. A memo from the chief counsel of the National Labor Relations Board (NLRB) opined that football players at 17 private colleges and universities are indeed “employees” and can seek better working conditions including — gasp! — actual money for their play.
If you think that didn’t throw a scare into NCAA conferences and schools like a Myles Garrett blindside sack, you don’t understand the billions being made by Football Bowl Subdivision (FBS) schools off their scholarship athletes. The NCAA’s 10 FBS conferences are getting $7.3 billion over 12 years from ESPN for the rights to the College Football Playoff games alone.
For now, the memo only involves private FBS schools — Northwestern, Notre Dame and Duke among them. And as NCAA chief legal counsel Donald Remy noted in a New York Times interview, the memo doesn’t constitute a binding position that must be followed.
But it’s a start for those pursuing compensation beyond the NCAA’s “amateur” rules. And once you inch open those floodgates a tad, the possibility of being overwhelmed by a sudden surge of complaints under the National Labor Relations Act (NLRA) becomes real indeed.
Colter hailed the memo as a “very historic decision’’ paving the way for future player claims. He co-founded the College Athletes Players’ Association in 2014 with former UCLA player Ramogi Huma in an effort to unionize Northwestern’s team.
A regional NLRB director ruled in March 2014 that Northwestern players could unionize. But the national board unanimously overturned that decision in 2015, while declining to address whether players enjoyed “employee’’ status.
This latest memo, for now, is the furthest the national office has gone in addressing that issue.
“It goes to show that office is willing to prosecute any unfair labor practice charges that fall within the NLRA,’’ Colter said. “So, it’s a big decision and I think it’s opening the door for more progress to be made.’’
For now, he says, players from the 17 colleges can file claims for better working conditions, medical benefits and financial compensation while receiving NLRA protections. Specifically, he adds, Section 7 protections that also allow employees to engage in activities promoting their interests.
So, while the memo states players still cannot unionize, they can campaign for things such as pay without fear of being benched or kicked off the team.
In issuing the memo, NLRB chief counsel Richard Griffin wrote to regional directors nationwide that “there is substantial evidence that colleges and universities control the manner and means of scholarship football players’ work on the field and numerous facets of the players’ daily lives to ensure compliance with NCAA rules.’’
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Using Northwestern as an example, he stated scholarship football players there received up to $76,000 annually as of 2012 to cover tuition, fees, rooms, board and books. In addition, he added, by 2015, they received an additional stipend to cover incidental costs such as travel and child care.
He also noted, “The players’ compensation is clearly tied to their status and performance as football players, since they risk the loss of their scholarships if they quit the team or are removed because they violate their schools or the NCAA’s rules.’’
His conclusion? They are employees. And like other employees, entitled to protections and the right to negotiate future improvements.
Colter adds the goal isn’t to see players paid millions. He says his quest was borne of the suicide of NFL Hall of Fame linebacker Junior Seau, who’d suffered chronic traumatic encephalopathy (CTE) from repeated head trauma.
Seau played with Colter’s uncle at USC.
“It was something that was very scary,’’ Colter said. “I saw there was a need for some protections to be made and for players to have guaranteed medical coverage moving forward. We didn’t have guaranteed medical coverage at the time.’’
Colter found it “funny” watching college football on TV and noting coaches, officials and even stadium vendors and concessionaires had such coverage.
But “the people most at risk — the players’’ weren’t covered.
Nowadays, the focus is more on actual compensation. The decisions by LSU running back Leonard Fournette and Stanford running back Christian McCaffrey to skip December bowl games and focus on the NFL draft highlighted financial risks faced by college players unpaid beyond scholarships.
While savoring this victory for now, Colter knows it might be fleeting. Griffin’s term as chief counsel expires in November. His successor is to be named by President Trump and it’s unclear whether he or she will support Griffin’s memo or issue a new one that goes in an opposite direction.
Regardless of what happens, Colter expects the NCAA and its schools to keep fighting attempts to alter the status quo.
“They’ve made tons of money,’’ Colter said. “They’ve spent that money to build new facilities and to pay enormous coaching salaries and salaries of the different administration. And so if there was a redistribution of this towards better resources for the players it might hurt that.’’