Unions Allowed for College Athletes

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The National Labor Relations Board has decided that college athletes at private schools are employees, and can therefore can unionize. Stanley Lubin, a Phoenix labor attorney, will discuss the legalities of the issue.

Ted Simons: Coming up next on "Arizona Horizon," a major ruling gives college athletes the right to unionize. We'll get a legal analysis of the decision. We'll learn about Maricopa County's new mental health service provider for the poor. And we'll see how a painter and photographer turns autos into art. Those stories next on "Arizona Horizon."

Ted Simons: Good evening and welcome to "Arizona Horizon." I'm Ted Simons. A regional director of the National Labor Relations Board ruled yesterday that college athletes at Northwestern University are employees and thus have the right to unionize. Stanley Lubin is a Phoenix labor attorney. He joins us now. It's good to have you here.

Stanley Lubin: My pleasure.

Ted Simons: Well, this is -- this is a really big deal and in the future it could be a really big deal. What's going on here?

Stanley Lubin: Well, it could be a big deal but when you count the numbers today, it really isn't. Because it applies only to private schools and anything that is not a public school, a publicly owned school because they're exempt from the statute. Out of the major colleges in the country, 17 of them are covered by this decision.

Ted Simons: Some of those schools, obviously Northwestern, Stanford, Notre Dame, USC, those are big.

Stanley Lubin: Miami. That's true and the Loyola schools.

Ted Simons: So what did the national labor relations board and this was not the full board in D.C., this was --

Stanley Lubin: Just the regional director in Chicago. He basically said these football players, athletes, are employed by the university. They're basically, they're not paid in cash, but they're paid. They get scholarships, they get room and board, they get clothing, they get travel, they get food. And in return for that, their lives are controlled by the university's athletic department. They are told when to eat, what to eat, where to eat, how to dress. They are required to be at practices, sometimes, up to 40 to 60 hours a week, and even during the school year, their football takes priority over their academics on occasion. So it's a very big thing for them to decide whether or not -- what is their life going to be like? And it's that of an employee. An employee is not necessarily just paid in cash. If you work for somebody and you get remuneration for it, it does not have to be in cash, you're an employee.

Ted Simons: Compensation for service, right?

Stanley Lubin: Compensation for service.

Ted Simons: Schools are saying and the NCAA is saying the scholarships are not compensation, that's a grant.

Stanley Lubin: They can call it whatever they want but it's a compensation when you require the students and the athletes to be present for half their summer, then when they're in school, they're working 20 to 40 hours a week, sometimes, more, to the point where, for example, the record at the northwestern case, there is evidence that, for example, if a student wasn't available at the time a test was given, they would ask the professor to move the date of the test and most of them would. In addition, they would actually hold the bus back for students so that they can take a test if the professor wouldn't yield on it. No question about it these kids are being paid.

Ted Simons: And again, compensation for service, also they're under the direct control, you say, of the school but really of managers and those managers happen to be their coaches.

Stanley Lubin: That's correct. They have to get permission to leave campus, for example, if they wanted to go home for a weekend, even during the nonseason. A good example of what happens is that the players have to be where the coaches want them to be, when they want them there and doing what the coaches say. That's what an employer does when you're at work.

Ted Simons: You're being managed.

Stanley Lubin: You're being managed, you're totally controlled by them when you're at work.

Ted Simons: So other college players again at private universities, this could be an issue. Not public universities because the national relations board does not have authority over public universities?

Stanley Lubin: That's correct. The definition of employee under the act excludes all employees of any public entity.

Ted Simons: What happens to athletes at public universities?

Stanley Lubin: Well, it depends on what state they're in. For example, if you're back in New York or Michigan or Ohio or some of the other states back east or California, you may have a statute that applies equally or as well as or differently than the national labor relations act that allows those employees to claim it. There's no decision that says they aren't employees but that doesn't mean somebody's not going to try for it now.

Ted Simons: You could have 50 different definitions of an employee of a student athlete employee.

Stanley Lubin: Somebody said that to me yesterday but I said not in Arizona so don't worry.

Ted Simons: 49 then.

Stanley Lubin: The only school in Arizona that's covered by this would be Grand Canyon.

Ted Simons: True, that's true.

Stanley Lubin: Because U. of A. and ASU are public schools.

Ted Simons: Welcome to the sporting world.

Stanley Lubin: Welcome to the sporting world.

Ted Simons: I know the NCAA and the schools are saying the athletes, they're students, they're not -- they're not the same as truckers, they're not the same as workers in the traditional sense of employees. Is that going to stand?

Stanley Lubin: Is a trucker the same as a university professor? Is the trucker the same as auto worker who builds a car? Is a trucker the same as the pilot of an airplane? The statutes cover different types of employees and these are different types of employees. Baseball players, football players, the professional leagues are all covered by this statute.

Ted Simons: Considering the unique nature of a student athlete, is there case law out there, is there anything similar to this?

Stanley Lubin: No.

Ted Simons: Nothing?

Stanley Lubin: No. The university argued that the -- there was a case involving Brown University, involving graduate student teachers. And they were held not to be employees because they were there for a very short period of time, a year or two generally, and that their primary purpose was education of themselves, to get their education and this was the way they were paying for it. The regional director here distinguished that case by saying that's all well and good but they're not working 40 to 60 hours a week and their goal here is not to teach other students or to learn, it's to play football and win a game as Northwestern said in a video that was in evidence, the goal is to win games and they make a lot of money off football.

Ted Simons: We have this guy in Chicago with this ruling now. Does it go back to D.C. and the full board?

Stanley Lubin: If the university appeals and they said already they will, they have 30 days, they have a right to request a review. They will get a very quick preliminary decision from the labor board if it's a yes. If it's a no, it will take time. But generally, the board issues a quick decision, they hold an election, lock the ballots up without counting them and wait for a full decision to come down. My guess is that we'll know the answer to that in three months.

Ted Simons: If the full board says these are employees, you better get used to it, how does college sports get used to it?

Stanley Lubin: I don't think it's a big deal.

Ted Simons: Interesting.

Stanley Lubin: They just have to sit down and bargain with them. Over terms and conditions of employment. They may have to bargain over wages. That would be an interesting one because of the NCAA rules.

Ted Simons: You're going to have strikes, university locking out some of these student athletes?

Stanley Lubin: I don't know that's ever going to happen but it's possible. It's possible now.

Ted Simons: Yeah.

Stanley Lubin: I mean, what's to stop the athletes from saying we're not going to play this weekend? In fact, that happened last season, earlier this season I think, one of the colleges in the south, if I remember right, the players refused to travel to a game because they were mistreated by the coach.

Ted Simons: Exactly and the coach got the boot.

Stanley Lubin: I think so. I'm not sure about all the facts on that.

Ted Simons: So last question. Are you a college sports fan?

Stanley Lubin: Big one.

Ted Simons: All right. Do you think that in three to five years or in the foreseeable future, we will look back on this and look back on college sports as it now exists and say, wow, things have certainly changed?

Stanley Lubin: They're going to change anyway. The NCAA is under incredible pressure to pass rules to allow these athletes to be paid something or do something different. They're under incredible pressure to change the rules now. Irrespective of this decision. Will there be change? Yes. Will this decision drive the change? Probably in part yes but it depends on whether it stands. You know, and I think it's going to be a question of a lot of other factors coming in, as well.

Ted Simons: And very quickly, if the universities decide a stipend is a way to go, every athlete gets paid x, does that alleviate some concerns here?

Stanley Lubin: It might. But the concern here that has been driving this train has been injuries, what happens if I get hurt? What happens for the rest of my life?

Ted Simons: There are other lawsuits out right now along those lines.

Stanley Lubin: True. In fact, you know the coaches at Northwestern are not opposed to this.

Ted Simons: This is fascinating. It's good to have you here.

Stanley Lubin: My pleasure, my pleasure.

Stanley Lubin:Labor Attorney, Phoenix;

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