Tuesday, April 8, 2014

Unions and College Athletes – What Happens Next

On March 26, 2014 the Chicago office of the National Labor Relations Board (NLRB) ruled that the football players of Northwestern University are employees of the university not simply student-athletes, thus they have the ability to form a union and have the general protections afforded to all employees under federal law. While there are numerous hurdles left for college athletes to climb before officially having the ability to join a union long-term, this post will not deal with whether or not this ruling is legally valid and will survive NCAA appeal or the methodology behind their formation and operation of the future union(s), but will instead ask what steps a union should take to enrich the lives of college athletes.

The chief reason behind the desire of college athletes to unionize is that currently they have no effective power to participate in the decisions and operations of the NCAA governance on any level. For workers one of the major advantages of a union is it coordinates focus and awareness across and between participating parties. This focus is critical to creating scale power because workers in any industry have little power if only able to act on their own or in small groups. Unfortunately for college athletes this scale power critical for maximizing bargaining ability from this ruling is only limited to private universities in states with NLRBs that rule similarly to the Chicago office; public universities are governed by existing state law, so there will be other obstacles for unionization for these universities, especially due to the fact that 24 states have active right-to-work legislation restricting unionization. However, ignoring this concern for a moment what would college athletes require of universities with the new power to form a union?

The most public complaint/driving force used by Northwestern athletes is a concern regarding medical coverage. In 2005 the NCAA mandated that athletes must be covered by health insurance in some form with limited restrictions on the provider (basically the insurance could be from the university, individually purchased, from the athlete’s parents, etc.). In addition the NCAA operates a “catastrophic injury” insurance policy through the Mutual of Omaha when an injured athlete has medical costs that typically exceed $90,000 born from a single injury event (although it can be $75,000 for universities that participate in the NCAA Group Basic Accident Medical Program).

While many universities provide medical insurance to athletes as part of the scholarship, the chief problems with this structure is a lack of legal requirement (most do it out of a form of social responsibility), a lack of transparency and a lack of uniformity as various universities have various types of insurance coverage. Most athletes receive proper medical attention when injured, but these three above problems catalyze the probability of athletes entering a state of “medical limbo” with regards to their treatment. Not surprisingly these are the “horror” stories that major media periodically latches on to; however, the problem is that these types of stories are not unique to athletes, but afflict non-athletes as well, thus are not an inherent problem in the college system.

Clearly the current system of medical coverage does have its holes, but holes that are easily repaired especially in the face of new legal protections. Note that for football players it is difficult, despite the “certainty” of concussion proponents, to directly link participating in football to brain damage that occurs decades later. Understandably it is reasonable to suggest that there is an increased probability for future brain damage from playing football, but to suggest that any element of damage can be derived exclusively from playing football is incredibly difficult. Therefore, while it makes logical sense to extend medical coverage for college athletes beyond their playing days, this extension should have a valid time limit. There are two strategies for negotiation.

The first strategy would be to focus on a simple flat time period that would be applied to all athletes and extend beyond the individual’s playing career. For example a good time period appears to be five years, which is also used by the NFL. Therefore, suppose an athlete stops playing sports for University A on March 28, 2015 under such a system this individual would be covered by the university’s healthcare program until March 28, 2020 regardless of whether or not they are still a student. This strategy appears fair because it allows all athletes to have sufficient time to recover from all major physical and short-term mental injuries acquired while playing sports for a particular university.

However, some may view a flat rate as inappropriate because it treats all athletes as equal despite the amount of time these athletes may have actually participated in the given sport. Therefore, a second strategy would be to focus on an extension tied directly to the length of time a sport was played. For example one could create a system where an athlete is covered by the university’s healthcare program for an additional two years after the playing career is concluded for each year the individual played. So if an individual played ice hockey for two years and stopped playing on April 3, 2015 under such a system this individual would be covered until April 3, 2019. This system would operate on the mindset that the longer a person played the higher the probability of acquiring an longer-term injury, thus the longer an individual plays the longer that individual should have extended health coverage.

While the exact details of such a system would have to be developed through negotiation between the union and each particular university or possibly the NCAA directly, it stands to reason that this healthcare coverage would be secondary coverage in that it would fill any gaps in principle coverage that the individual receives from their employer. If the individual does not receive health insurance from their job then this university-affiliated coverage would apply. However, the time period on this coverage would be concurrent with any employer insurance. Basically if an individual stopped playing on June 30, 2015 got a job that provided health insurance on July 15, 2015 and was laid off on April 17, 2018 under a five year fixed time program their coverage with the university would still end on June 30, 2020 despite not using that coverage for almost 3 years due to the coverage provided by the job.

Obviously the university should cover an athlete in some way until the NCAA catastrophic policy would take over and this university coverage policy must be transparent to the point where potential recruits can actually see what is covered and what is not covered. Additionally there should be a minimum level of coverage mandated by the NCAA to ensure appropriate medical treatment. One could argue that this legal mandate is addressed by the Affordable Care Act (ACA) and while true, the ACA may not be permanent due to the zeal of certain members of Congress to repeal it, thus the need for a separate required NCAA mandate. Finally another element could be negotiated would be healthcare substitution. Suppose an athlete wants more coverage than the university is willing to offer, the university could include an additional healthcare stipend at equal monetary value of the standard university healthcare coverage to help pay the athlete pay for the other more desired policy.

Staying in the medical area one raises the question could a union actually change the number of games and/or when those games are played in a particular sport? Over the last few decades the number of college games that various sports have scheduled has increased significantly due to increased travel options and most notably the expansion of incentive to play these games (television money). Clearly the probability of injury increases and the probability of academic success decreases when the number of games an individual plays increase; therefore, could a union attempt to actually reduce the number of games that their particular sport plays? While this idea may be an interesting one, success would be difficult simply because of the money involved with playing each game in these high value college sports.

The principle mission of colleges is to provide an advanced level of education that further prepares individuals to become productive members of society. Unfortunately that principle mission and being an athlete has come into some level of conflict in recent years with the added workload attributed to participating in college athletics. Due to the extensive practice, travel and game schedules the available academic options of athletes at a number of universities have been compromised. In some situations athletes have been confronted with the choice of majoring in subject x or playing sport y because of the inability to schedule and/or attend the required classes.

One of the chief elements driving this conflict is that despite a 1991 decree by the NCAA that limited the number of required countable athletically related activities (CARA) to four hours per day and twenty hours per week, almost all institutions have worked around those restrictions by allow coaches to organize “voluntary” practices. Of course the secret that is not a secret is these “voluntary” practices are not really voluntary; at least not for non-star players who if they do not attend typically find themselves with reduced playing time. It is through these “voluntary” practices and workouts along with travel time that the NLRB could cite an average workload for football players at Northwestern at 40-50 hours per week despite the 1991 limitation. This designation by the NLRB is somewhat controversial because some argue that participation in additional practices behooves the athlete because it enhances their playing ability, similar to non-athletes like musicians and actors, thus these practices should not be controversial relative to the 20 hour CARA limit. However, the controversy stems from the team organized nature of these activities versus the athletes simply putting in the work lifting weights, conditioning, etc. by their lonesome.

In addition to this extended workload for the average week the length of time over a calendar year that athletes have to invest is significant. For example for football players the regular season begins around Labor Day (typically on the preceding Thursday) and depending on the conference ends on the second Saturday or Sunday in December with bowl games starting anywhere from two weeks to six weeks later. During the off-season football players begin preparing for the coming season through an extensive conditional program that involves multiple practices per week that typically starting early in the morning. In general for most sports the conflict between educational opportunities can be broken down as such – during the regular season afternoon classes are off-limits because of practice and game priorities and during the off-season a selection of morning classes are off-limits because of practice and conditioning priorities. How is an individual supposed to pursue their academic and athletic dreams if these conflicts exist?

A union could address this conflict by using expanded legal protections for those who wish to treat “voluntary” practices as exactly that voluntary. Any changes in the playing status of an individual who only abides by the required practice hours would force the authority structure (typically the head coach) to explain the demotion, which would become significantly more difficult with a union behind the scenes protecting players. In addition to practice hours, unions could also address the “big brother” type system that most universities create to “help” athlete time management including types of classes taken, where one sits, how much study hall is attended, personal travel arrangements, where the athlete lives, acquisition of money from family members, etc. Additionally a union could organize “vacation” time for athletes that could be used during the off-season for recuperation purposes. Finally more flexibility could be added to the practice system in the off-season allowing athletes to attend either a morning or an afternoon conditioning session allowing greater class selection ability for their education.

Another popular idea for unions would be to establish new policy governing athletic scholarships. Skipping the period where athletic scholarships were controversial due to their non-academic and possibly non-amateur nature, the first “generation” of athletic scholarships covered four years and had sufficient certainty in that it was rather difficult to cancel the scholarship even if an athlete struggled with injury. Even when these four-year scholarships fell out of favor, early on in the one-year renewal system a university scholarship committee, not athletic directors or athletic coaches, made decisions regarding renewal. Unfortunately due to Proposition 39 in 1973 both four-year scholarships and scholarship committees became rare replaced by single year scholarships renewed year-by-year by the head coach. While Proposition 39 was later rescinded in 2011 allowing universities to offer multiple year scholarships once again, most universities have retained the one-year renewal model.

It may be too much and not appropriate to attempt to go back to the four year guaranteed athlete scholarship, but a union could ask for increased scholarship allowances for injured players as well as a return to scholarship committees, removing a significant element of power from head coaches to “encourage” athletes to devote more time to athletics. In addition the expansion of scholarships after the conclusion of a playing career based on the total time of performance could serve as a valuable tool for the acquisition of a degree. One example of this idea would be for every year an individual plays for a university team that individual would receive an additional half year scholarship, thus playing for four years would yield that individual an additional two years on a specialized scholarship not related directly to the athletic program. Clearly before any scholarship idea is administered it would have to be applied separately from other scholarships because it would not be appropriate to trade one scholarship from a financial need student to an athlete.

The ability to transfer between universities without eligibility penalty would also be a point of interest for negotiation. Currently the transfer rules are rather restrictive towards athletes. The biggest problem with transfer rules is the lack of uniformity. Too many rules depending on type of school, conference, and sport, but the chief component to almost all of the transfer rules, especially for those transfers between major programs (4-year schools), is that the athlete has to sit out at least one year and take a full class load for both semesters (not summer) to establish academic “residence” before he/she is able to play.

In addition these rules have been viewed as rather hypocritical in that coaches routinely breach their contracts to leave for another “better” university job while athletes do not have that same freedom. Realistically it would make more practical sense that an athlete should be allowed to transfer retaining all remaining eligibility at any point during the off-season with the ability to play immediately pursuant to their existing academic eligibility. The university the athlete is departing from should have no ability to prevent the transfer through legal means. However, similar to its current prohibition it would not be appropriate to allow athletes to transfer during their playing season.

Of course the elephant in the room regarding the potential new employee statues of college athletes is whether or not they should be paid in financial capital that is not simply earmarked for educational expenses. This blog has addressed this issue before in the following post [http://www.bastionofreason.blogspot.com/2011/03/paying-college-athletes.html] and a vast majority of the argument still holds up regardless of whether or not college athletes are regarded as employees or students. However, there is an interesting angle that exists within the gap between amateur and professional status.

One could make the argument that it is still possible for college athletes to be regarded legally as employees and retain their amateur status, although the importance of this distinction is somewhat foggy. Maintenance of amateur status could be achieved through requesting a form of stipend that could be used to cover college-based expenses outside the scope of the scholarship. Most scholarships cover tuition, room and board, and direct educational materials like books and software, but do not cover common “everyday” expenses like personal travel expenses, non-team associated food, and other miscellaneous expenses. The stipend should fill this gap with the exact amount negotiated based on a general uniformity across all universities with an effective cost of living adjustment based on where the university is located.

A secondary advantage for the NCAA as an organization to providing this stipend is that it could offer protection against anti-trust litigation. Some argue that capping scholarships at the cost of attendance constitutes unlawful restraints on commercial activity. While this argument is suspect because the NCAA is not a monopoly nor is it required for future employment in the NBA, there does exist the possibility that a court could rule against the NCAA on this issue. However, agreeing to stipend restrictions through a collective bargaining processes should offer sufficient non-statutory labor exemption protection from anti-trust litigation mitigating one avenue for players to sue in an attempt to acquire a form of revenue sharing.

While revenue sharing is unlikely and a stipend is uncertain, college athlete unions could negotiate a payment structure for athletes when the university or third parties make additional funds from direct usage of their likeness or name. The one significant drawback to this possibility is that this very issue is currently moving through the courts via the Ed O’Bannon trial and could come to a conclusion before the union issue has resolved. However, if the union issue is resolved before the Ed O’Bannon case then both sides may be in favor of negotiating a settlement structure on this issue.

Unfortunately lost in the controversy of the decision by the NLRB ruling is that despite the ability to form a union, college athletes at private universities may not have sufficient power to make any real changes. The chief problem is the issue of scarcity. The difference in skill level between the Top 50% and the Top 10% of college athletes is small and with customer loyalty at the college level firmly behind the university versus the athletes that participate for that university the power of a strike in effort to enforce demands is limited. Universities only have a limited amount of scholarships and there would be more than enough individuals of similar talent and willingness to play by the rules of the current system to fill in for any striking athletes. In fact university would more than likely just have to sweep through the intramurals to replace a vast majority of the initial scholarship talent.

These “replacement” athletes would not produce any significant loss of revenue for the university because most of the money acquired from college football and basketball involve television contracts with the affiliated conferences, thus as long as the university fields a team, no matter how bad, the university will receive a vast majority of their planned revenue. The real power of a strike be the negative precedence created by striking athletes and how it will negatively influence future recruitment, thereby potentially hurting the bottom-line of the university through the continuation of a poor quality product that could eventually lead to dismissal from the conference and loss of the television contracts. However, would the first group of striking athletes be willing to act as sacrificial lambs to accomplish this goal because if they transfer to another university the power is lost and they would more than likely not receive a renewal of their athletic scholarships in the aftermath?

Therefore, the real power of the NLRB ruling may actually be the basic legal protections that come with recognizing student-athletes as employees. Overall while most of the above changes should be made solely because it allows the athletes to genuinely be student-athletes and it is morally right, a new college athlete union structure may have to pick its battles if it wants to produce change beyond the basic protections of the law.

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