Can you get a degree in Football? Well, maybe you should?

“Everybody’s talkin’ at me, I don’t hear a word they’re saying.”  Harry Nilsson said that.  You think he was talking about the NLRB and Northwestern Football?  Neither do I, but I like the song. In case you have not guessed, we are taking a bit of a break from the FLSA series.

So, as you have all heard, the Regional Director of Region 13 of the NLRB has decided that “grant in aid scholarship football players at Northwestern University are employees entitled to organize and collectively bargain under the National Labor Relations Act.”  It’s everywhere. ESPN is talking about it.  CNN is talking about it.  The New York Times is talking about it.  Why this happened and what it means will be debated until ultimately the Supreme Court of the United States decides the issue and yes, that is what probably is going to have to happen.  And what is really sort of funny about the whole thing is, by the time this is all settled, years from now, all of the Northwestern players who are pushing for this will have long since graduated.

So what exactly did the Regional Director discover that led him to believe after 145 years (according to Wiki, the first college football game was played between Rutgers and Princeton in 1869) that college football players are “employees”?  Well, the first thing he decided was that the appropriate definition for determining who an employee is under the NLRA was the “common law” definition of employment.  According to the Regional Director, “Under the common law definition, an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.”  Northwestern University, Case 13-RC-121359 (2014).  I’m not going to get into whether this is the right test, I don’t think it is, but it is the one he used.  Then he basically found the following:

The scholarship football players perform a service which benefits the university and they are compensated for it with a scholarship.

The tender of the scholarship to the players and the acceptance to play football in exchange for the scholarship amounts to a contract for hire.

The scholarship players are under the control of the University for the entire year at the risk of losing their scholarship.

Id.

The Regional Director then went on to dismiss the University’s argument that the NLRB’s decision in Brown University, 342 NLRB 483 (2004) governed because, unlike the grad students in Brown that the Board found were not employees, football players spend a lot of time, not a “limited number of hours” performing their “duties” as players, football is not a “core element” of the degree program like teaching is for grad students, football coaches are not “members of the faculty” like supervisors were in Brown, and grad students’ pay in Brown was “financial aid” not pay for services performed.

So what next?  Well, this is not the end.  As I mentioned above, this is going to be appealed and it will be going on for a long, long time before there is any final decision.  So what does Northwestern do between now and then?  How about offer a degree in Football?  Yes, I said it, offer a degree program in Football.   Why not?  What do we hear over and over again?  “These football players aren’t really in school to get a degree, they are just preparing for the NFL.”  OK, if that is true then prepare them like you would for any other job.  Give them a degree.  Kills two birds with one stone.  First, it takes care of the hypocrisy of calling a student athlete a student when all he is really trying to do is get into the draft.  Now he is working toward a degree that will help him in his chosen profession (OK, that’s reaching a bit).  And, at the very least, it takes care of the Director’s issues, doesn’t it?  Practice is now a class in “Offensive Line Blocking Theory” or “Route Running 305.”  Film study is a 3 credit class called “The Theory of Football.”   Only games and travel aren’t classes now.  So that would be what?  How about a “limited number of hours on their duties” like the grad students in Brown.  Football isn’t a core element of the academic program?  Well, if I’m trying to get a degree in Football it is, now isn’t it?  And those coaches that aren’t members of the faculty, they are now.  The strength coach, he is teaching my “Weightlifting” class.  And the head coach, he is now teaching things like “Leadership On and Off the Field: Theory and Practice” or “Basic Coaching 101.”  Oh, and those scholarships that the Director called “pay for performance of a service?”  Not anymore.  Now they are just financial aid so I can work toward my degree in Football.  We can even wrap this up in a nice little bow if we can talk the NFL and NFLPA into putting a degree requirement into the next CBA.  And you know what?  It will work for basketball too.

Ridiculous you say?  Crazy you say!  Who would take a Football degree you say?  Football players, that’s who.  And what reputable university is going to offer a degree in Football or Basketball?  How about all of them.  You tell me, how is playing football for a major university any different than playing the oboe in a university orchestra?  That’s right, the oboe.  Northwestern happens to have a very good music program that offers degrees in everything from Conducting and Ensembles to Voice and Opera.  They offer Music Theory and Music Composition.  They offer undergraduate and graduate degrees and students have to audition to get into the Bienen School of Music to . . . play the oboe.

The Audition and Program Requirements Guide for the 2013-2014 academic year is 19 pages long and requires aspiring oboe students to perform “Suggested Solo Selections such as Concerto by Cimarosa, Marcello, Handel, Mozart, or Vivaldi” among other requirements.  I’ll bet some of these students perform in concerts and I’ll bet some of these concerts are after hours and even on Saturdays.  Sounds like a football game.  I’ll bet the University even charges admission for some of these shows so they are getting a monetary benefit.  Sort of like football tickets.  And I’ll bet, if we looked hard enough, we could find some rich old person who donates a boat load of money to the University because he or she likes the orchestra.  Except for the dollars that change hands, not so different from football, now is it?   Oh, and by the way, according to Northwestern’s literature,

The Bienen School of Music offers merit-based scholarship grants to students who have presented exceptional applications and auditions. These grants are based upon musicianship, scholarship, leadership and a demonstrated personal commitment, as well as on departmental needs. We award over $4 million annually to the students in our graduate programs.

So at least at the graduate level, these kids are getting paid to come to school too.  To Play The Oboe.  And I don’t hear anybody calling the best oboist at Northwestern an employee.

So problem solved, Northwestern, offer a BA in Football.  Oh, and by the way, before you tell me there are no jobs for people with a football degree, in 2011 there were about 1,700 professional football players in the NFL.  And that does not include jobs as coaches, trainers or talking heads on TV and radio.  According to Wiki, in 2007 there were 117 U.S. orchestras with annual budgets of $2.5 million or more (that is just a bit more than one year’s pay for the average NFL player).  According to Wiki Answers, the average orchestra has three or four oboists.  If my math is right, that is 468 full-time oboists in big-time orchestras.  I like the odds in football better.

Now before you all get all worked up, yes, I’m kidding, but only sort of.  You see, Northwestern should not have to be making these decisions and we should not have to be talking about whether college football players are employees.  Yes, the University makes a lot of money from football and basketball, and yes, because of stupid and I mean stupid, NCAA rules, players sometimes have to scrimp or break those rules to get by while the University makes a lot of money, but two wrongs don’t make a right.  Don’t like the NCAA rules and think they should be changed?  Good for you, work to change them.  Big universities with a lot of power like those in the Big 10, for example, are eventually going to tell the NCAA to drop dead and drop out anyway.   Should big‑time programs provide health care for these players?  Yes probably and that, by the way, may end up being one of the unintended consequences of this decision.  So, if we change football to a degree program, do we get out from under these NCAA rules?  Does the NCAA govern academic scholarships?   I don’t think so.

But that is not what this blog is all about nor is it why this decision came down the way it did.  In my opinion, this decision did not come down the way it did because anyone really thinks these kids are employees of the University.  It came down the way it did because the NLRB continues to reach beyond what it has traditionally done and unions are trying to stay relevant.  Don’t forget, in their heyday, unions represented about 35% of the private sector workforce, whereas today that number is about 6%.  Unions even have trouble winning elections when the employer stays neutral and wants the union.  Just look at what happened to the UAW in Tennessee recently.  And this is just the latest headline in what has been a constant stream of headlines highlighting this continued effort by the NLRB to expand its reach.  Let’s just look at the last couple of years:  First the NLRB GC issues a series of memorandums dealing with social media in the non-union workforce, extending Section 7 protections way past what anyone envisioned them to be.  Seems the GC thinks that companies can’t even control the use of their own logo.  Then the Board reaches well beyond its authority and tries to implement a poster requirement which has to be knocked down by the courts.  The Board continues to try to apply its D.R. Horton decision despite several courts rejecting its logic.  And the Board has even issued complaints claiming that the most common provision in any employee handbook, the at-will provision, is an unfair labor practice.

So if all of this is going on and you are a union, you hitch your wagon to some disgruntled college kid and try to make headlines. Oh, and one final thing:  I think it is interesting that one of the things the spokespeople for this particular union claims is that football interferes with academic success.  Maybe at some schools, but Northwestern?  According to the Regional Director’s decision, Northwestern players have cumulative GPAs of 3.024, graduate at a 97% rate and have an Academic Progress rate of 996 out of 1000.  Making Northwestern the most academically successful Division 1 football program in the United States.

Maybe that is exactly why these kids think they need a union.  Seems at Northwestern they actually have to go to class.