By Timothy D. Cedrone
By most accounts, 2014 was a banner year for student-athletes in securing more rights from the NCAA and its member institutions. Hard-fought victories were obtained both inside and outside the courtroom. One such victory was a ruling from Regional Director for Region 13 of the National Labor Relations Board in Northwestern University. In his decision, the Regional Director determined that grant-in-aid scholarship football players at Northwestern University are “employees” under Section 2(3) of the National Labor Relations Act and can therefore hold a unionization election. However, not everything came up roses for student-athletes in 2014. In fact, the year ended on a sour note for student-athletes at public colleges in Michigan, where recently enacted legislation will eliminate the possibility of any unionization efforts at public colleges before they even begin.
On December 30, 2014, Michigan Governor Rick Snyder signed Public Act 414 into law. That law, which was implemented immediately, amended the Michigan Public Employment Relations Act to specifically exclude from the definition of “public employee” any “student participating in intercollegiate athletics on behalf of a public university in this state.” The obvious effect of the amendment is to prohibit student-athletes from engaging in activities permitted by the statute, such as forming labor organizations; engaging in concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection; and negotiating or bargaining collectively with their public employers through representatives of their own choosing. In describing the purpose of the law, the legislation’s sponsor, Al Pscholka, said, “Student-athletes need to be treated as students first, and athletes second.” He further stated that the law “would ensure that college athletes are students, first and foremost, and should not be treated as employees by their schools.” Because of Public Act 414, student-athletes at Michigan’s fifteen public colleges (including Football Bowl Subdivision members University of Michigan and Michigan State University) will not be able to unionize, regardless of the ultimate decision in Northwestern University.
Could the new Michigan legislation be the beginning of a nationwide trend? Consider this: Michigan is not the first state to prohibit student-athletes from unionizing in the wake of the Northwestern University case. In April 2014, the Ohio Legislature included a provision in state budgetary legislation that effectively prohibits student-athletes from being recognized as employees. Ohio Revised Code § 3345.56 states, “Notwithstanding any provision of the Revised Code to the contrary, a student attending a state university as defined in section 3345.011 of the Revised Code is not an employee of the state university based upon the student’s participation in an athletic program offered by the state university.” Accordingly, student-athletes at Ohio’s fourteen public colleges and universities (including Ohio State University) cannot unionize under the Ohio Public Employees’ Collective Bargaining Act. Interestingly, the Ohio statute is broader than its Michigan counterpart in that it is not applicable solely to the Ohio Public Employees’ Collective Bargaining Act, whereas the Michigan amendment is limited to the Michigan Public Employment Relations Act.
A variety of factors could influence whether other states follow the lead of Michigan and Ohio. A loss by the student-athletes before the National Labor Relations Board in Northwestern University could result in state legislators deciding that the issue is not worth pursuing. Another factor — public opinion — could dictate an opposite approach. Indeed, if lawmakers follow public sentiment, more states will enact laws similar to those in Michigan and Ohio. According to an April 2014 poll conducted by the Seton Hall University Sports Poll, “the public said [student-athletes] should be considered students and not employees by a 64%-29% margin and should not be allowed to form a union by 60%-34%.” If lawmakers in states that permit public employees to unionize take note of public opinion, they could pursue legislation similar to the Michigan and Ohio statutes. It is also possible that the federal government (and specifically the Republican-controlled Congress) could take up the issue through amendment of the National Labor Relations Act.
It remains to be seen whether the federal government and other states replicate the Michigan and Ohio legislation and prohibit student-athletes from being able to unionize. The outcome of Northwestern University will be very influential. A reversal of the Regional Director’s decision could discourage unionization efforts at public colleges; on the other hand, an affirmance could embolden student-athletes at public colleges to pursue unionization. These efforts could be stopped before they start if states follow the examples of Michigan and Ohio. In the end, while there is still much in doubt regarding student-athletes’ ability to form a union, there is one certainty: the issue will not go away for the NCAA and its members any time soon.
Timothy D. Cedrone, Esq., practices labor and employment law with the law firm of Apruzzese, McDermott, Mastro & Murphy. He is also an adjunct professor at Seton Hall University, where he teaches Sports Law, and Chair of the Entertainment, Arts, & Sports Law Section of the New Jersey State Bar Association.
