Can college athletes form a union?

Listen to Ray’s interview with Kenneth Dau-Schmidt, Professor of Labor and Employment Law at IU’s Maurer School of Law:

Great talk with the William and Margaret Carr Professor of Labor and Employment Law at the Maurer School of Law at Indiana University (deep breath!).  Frankly, he doesn’t know exactly what is going to happen, because there isn’t much case law for anyone to use as a precedent.

An expert on labor law says because of a lack of precedent, there’s no way to know whether federal regulators will allow college athletes to organize a union.

The National Labor Relations Board is holding hearings on whether the National College Players Association can organize.  The effort is being backed by the United Steelworkers and is led by former Northwestern University quarterback Kain Colter.  While union representation ostensibly would establish an employer-employee relationship between athletes and colleges, Colter’s criticism has mostly been aimed at the NCAA, which he referred to as “a dictatorship.”

Whether college athletes could be considered employees is a primary question.  Teaching assistants and residential assistants are not employees, with courts ruling that those jobs are part of the education experience.  “It’s not clear, however, that being a student athlete is part of your educational program in the same way,” said Kenneth Dau-Schmidt, Professor of Labor and Employment Law at I-U’s Maurer School of Law.

Athletes who are recruited to play sports believe they should be considered employees because they receive scholarship money, and they have to adhere to strict schedules, unlike most ordinary students.  “We don’t have a lot of case law.  They are permitted to work.  They are directed, and they do receive some kind of compensation for it.  So under a very broad definition of employee, they might be employees, but that isn’t how we traditionally think about them,” Dau-Schmidt said.

There also could be different rules for private universities like Northwestern and public schools like IU and Purdue. Private schools, Dau-Schmidt said, would be governed by federal labor law.  State-supported universities would be governed by state law, and in Indiana, most public employees are not allowed to collectively bargain.  “They would be back under the old common law, which was if they bargained with an agency that had authority to set their terms and conditions of employment, then that contract would be enforceable, even though collective bargaining wasn’t authorized.”