NLRB, Scholarships and Bootleg Plays

A bootleg play occurs when a quarterback pretends to pass off the ball in an effort to misdirect the defense, and then runs with it.

For years, universities have been engaged in a bootleg play with respect to elite football and basketball players and teaching assistants. They compensate these employees with free tuition and other “grants in aid,” despite the fact they really work for the university and, especially in the case of athletes, generate millions of dollars in revenue.

Now the National Labor Relations Board (NLRB) has issued a decision classifying football players at Northwestern University as employees who are entitled to unionize (or not).

The university pays a wage to undergraduate students who work in the campus library or dining hall.  Why shouldn’t  it pay a football player who is required to work 40 to 60 hours a week in sometimes difficult conditions, while risking brain injury and chronic debilitation?

NLRB Judge Peter Sung Orh ruled the Northwestern football players are employees because, among other things, they are required to work under “strict and exacting control” by the university throughout the entire year, so much so that it interferes with their educational pursuits.

Critics argue the athletes are compensated already through scholarships (which could be construed as an admission that they are employees).  Nonetheless, an athletic scholarship is not like a scholarship to study poetry or physics. It is money paid for work performed for the university.

The Northwestern football players who get scholarships (only 85 out of 112 do) receive free tuition, room and board and other perks totaling an estimated $61,000 a year. But this  rate of compensation pales when compared to coaches, athletic administrators and the profits they generate for the university.

The real issue that strikes fear in the heart of American universities is the possibility that college athletes might demand a  share of the pie. According to the Washington Post, the television contract for the new college football playoff system is worth $7.3 billion over 10 years, and the current deal to broadcast the men’s basketball tournament is worth $10.8 billion over 14 years.

Importance of Language

Football players aren’t the only university employees who are being short-changed through a bootleg play.

Universities like call teaching assistants “graduate students” so that they can be largely unpaid. However, in the past two decades, teaching assistants (a.k.a. Academic Student Employees) have unionized at approximately two dozen public American universities.  The Internal Revenue Service considers teaching assistants to be employees and taxes their compensation as wages.

Private universities like Northwestern have fought successfully to avoid unionization of student employees but that may be changing.

The NLRB ruled in 2004 that teaching assistants at Brown University were primarily students and denied them a petition to unionize.  However,  students at New York University, which is a private institution, voted last December by a margin of 620 to 10 to affiliate with the United Automobile Workers, a national union that represents  workers in higher education across the country.

 

Judge  Ohr said the Brown precedent did not apply to football players in part because their role as athletes are separate from their academic role.  He has directed an election to take place on the question of whether the members of the Northwestern College Athletes Players Association wish to unionize. The university is expected to appeal Ohr’s decision.

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