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What’s Next for Kain Colter and College Athletes?

In a move that would change the face of college sports,  Northwestern Wildcats quarterback Kain Colter and his teammates have filed union cards with the National Labor Relations Board (NLRB). They have the backing of the United Steelworkers Union.  If they are granted collective bargaining rights by the NLRB, they would be formally represented by the College Athletes Players Association (CAPA).

The concept of forming a union came to Colter through one of his classes at Northwestern.  It was further developed when he reached out to Ramogi Huma, a former UCLA linebacker and president of the National College Players Association. Much of the CAPA’s attention seems directed at ensuring proper healthcare for NCAA athletes.  In reference to concussions, Huma states, “[t]he NCAA has been running from this issue … [a]nd so over the years, it’s become evident that unless players have a seat at the table, they’re never going to have comprehensive reform and basic protections.” While the CAPA’s initial goals do not include salaries, Huma has not ruled out the possibility of seeking salaries in the future.

 In order to form a union, players must first be considered “employees” of their respective university.  Since the National Labor Relations Act does not provide a comprehensive definition of “employees”,  recent case law as to what constitutes “employee” status will guide the NRLB.   In Brown University, the NLRB decided that graduate student assistants working for Brown were not statutory employees. Brown University, 342 N.L.R.B. 483 (2004). In recognizing that “the role of teaching assistant and research assistant is integral to the education of the graduate student”, the NLRB held that “the overall relationship between the graduate student assistants and Brown is primarily an educational one, rather than an economic one.” Id. at 490. Thus, college athletes will have to characterize the nature of their activities as economic rather than educational.

While success for the CAPA is not guaranteed, the role of big time college athletes is clearly more economic than a teacher’s assistant. For example, Forbes points out that the NCAA produces nearly $11 billion in annual revenue and in 40 states, the highest paid public official is either the head football or basketball coach. This type of economic clout does not come without a cost: there have been at least 89 direct and 119 indirect fatalities due to football at the college level from 1931-2012.

In addition, student-athletes may also argue that for them, academics are not necessarily a priority. According to Forbes, the typical Division I college football player devotes 43.3 hours per week to his sport.  While the NCAA has eligibility requirements, a sliding scale permits an athlete to compete with only a 400 SAT score, provided their GPA is over 3.55.

 The prospect of paying college athletes may be unsettling for some but Colter maintains that he and his teammates are employees.  This is hard to deny in light of their role in generating more than  $11 billion in revenue.  We will keep you apprised of all developments in this matter.

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