Could unions be next for Gophers and other college sports teams?

The high-profile decision the other day by the U.S. Supreme Court allowing student athletes at colleges and universities to receive upgraded educational-related benefits beyond those currently limited by their governing body, the National Collegiate Athletic Association (NCAA), could lead to a number of changes in college athletics.

One is the imminent likelihood of allowing athletes to receive compensation from outside sources for endorsements, testimonials, and the like. Although not expressly addressed by the Supreme Court in its June 21 ruling in NCAA v. Alston et al., that clearly is on the horizon, especially because a number of states have adopted laws to that effect.

But there is another less visible change looming, perhaps of even greater significance, and it stems from litigation right here in Minnesota. Three weeks before the Supreme Court decision, the Eighth Circuit Court of Appeals, the federal court that oversees federal litigation in Minnesota and six surrounding states, reversed a lower court ruling by the Federal District Court in Minnesota that had dismissed a lawsuit bought by 10 Black University of Minnesota football players, claiming discrimination on how they were treated in connection with an investigation and ensuing discipline for a sexual encounter that occurred on campus during the Gopher football season five years ago. That case, John Does 1-2 v. Regents of University of Minnesota, permits the 10 football players to proceed with a lawsuit claiming gender discrimination on the part of the university in how they were treated, including suspension and other discipline.

While the original lawsuit claiming a variety of transgressions was pared down in the appellate court decision written by Judge James Loken, a Minnesotan, it nonetheless provides a vehicle for compensation for the affected students and, perhaps, a change in how internal investigations are conducted at the U and other educational institutions.

The possibility of unionizing

Beyond the specifics of that case, the ruling in the U of M litigation may resuscitate an issue that seemed to have been laid to rest a few years ago: the undertaking of unions by big-time college athletes. That development may have much broader impact for college athletics than the reverberations from Supreme Court’s decision in the NCAA case, which will largely be confined to highly visible athletes in the two largest revenue-generating sports, football and basketball, at big-time programs.

The possibility of unionizing, however, has more extensive implications. If unionization transpires, it will owe much to another occurrence here in Minnesota, the boycott by U of M football team in response to that flawed internal investigation and suspension of their teammates that formed the basis for the recent Eighth Circuit litigation. It will be recalled that in reaction to the disciplinary action taken against teammates by the university at the time, the squad refused to practice for the upcoming end-if-season Holiday bowl game in San Diego. The boycott was an attempted strategic lever by the teammates of the disciplined colleagues to demand their reinstatement along with apologies and resignations of the athletic director, Mark Coyle, who imposed the suspensions, and then-University President Eric Kaler, who supported it.

After three days, the protest petered out and the players returned to practice to prepare for the game against Washington State, grudgingly bowing to the reality that, as one player put it, their “demands are not going to happen.” With hiatus in practice for the game over, the Gophers proceeded to play in the game, defeating Washington State 17-12, which turned out to be the final game for Coach Tracy Claeys. He was replaced with P.J. Fleck, who came to campus to  “row the boat”  and has been doing it ever since.

The impromptu audible call by the players may not have been necessary and the ensuing chaos could have been averted or minimized had other means of recourse been available to the players at the time. One avenue of relief could have been a labor union representing the interests of the players. If a union had been in place, university officials would not have been able to take such precipitous action. Instead, they would have been obligated to accord certain rights to the accused players, including giving them a preliminary hearing, known as a Loudermill procedure, to allow them to state their case against discipline, which might have deterred the authorities from their excessive over-reaction. Even if discipline had been imposed, the players could have pursued a multistep dispute appeal process, culminating in arbitration proceeding before a neutral decision-maker.

But, without a union, the players had none of these rights and were subject to the arbitrary and unilateral decisions of U officials, which resulted in the contentious, costly and potentially calamitous court case.

Lurking on the horizon?

Alas, from the players’ standpoint, there was no union at the time. But labor unionization for college athletes could be lurking on the horizon, perhaps spurred by the Supreme Court’s NCAA ruling. The obstacles to establishing unions for college athletes begins with the National Labor Relations Board (NLRB), the federal agency that oversees management – labor relations in the private sector.

In 2015, it ruled that college athletes are not entitled to unionize. That decision came after an effort by players at Northwestern University to form a union. An overwhelming majority of the team members indicated a desire to unionize, and a proceeding to authorize a formal vote on unionization was accepted by the agency’s office in Chicago.

News reports at the time misleadingly indicated that unionization was a done deal and would be the model for labor organizations and other big-time college athletic factors. But it was not to be.

The NLRB Board in Washington, D.C., unanimously ruled that the athletes could not form a union. The decision was somewhat surprising because many observers figured that the body, which was Democratic-dominated at the time, would side with the interests of labor. But the board rejected the argument, reasoning that only “employees” can unionize and that the players were not employed by the school notwithstanding the consideration they receive: scholarships, room and board, small stipends, etc. The agency reasoned, as Northwestern management and its allies throughout college athletics argued, that the players were just “students,” who were not subject to federal labor laws and the protection they afford to those who are deemed to be “workers.”

The decision dealt a potentially fatal setback to the incipient college athletic unionization movement. But the NLRB has a long practice of reversing itself upon change in administration or the ideological outlook of its appointees, the majority of whom are customarily members of the party occupying the White House. The board, under President Joe Biden, has taken many actions supporting or facilitating the labor union organization.

That impetus could be enhanced by the Supreme Court’s NCAA decision. Although it did not address the issue of unionization at all, the most notable portion of the ruling was a concurring opinion by Justice Brett Kavanaugh, whose striking language may pave the way for unionization of college athletics. He lamented that no other “American business gets away with agreeing not to pay their workers a fair market rate.” He went on to refer to the arrangement that the NCAA had in which colleges limit the economic benefits for athletes as an illegal form of “price fixing labor,” which deprives athletes of “fair compensation for their work.”

Kavanaugh’s remarks, sure to be cited in future legal tussles, could be used as a playbook for unionization of college athletes. In viewing college athletes as “workers,” or employees, the opinion negates the precise basis that the NLRB used six years ago in ruling that they could not unionize because they were not employees or “workers” at their schools. It is not too remote from that reasoning to determine that college athletes do, indeed, “work” for the schools and, therefore, should be entitled to protection under federal labor laws or, for those who attend public schools that are outside the purview of federal labor laws, applicable state laws like the Public Employees Labor Relations Act (PELRA) in Minnesota.

Unionization would not only give more protection to athletes in disciplinary matters, but it also would give them a collective basis to negotiate terms and conditions for the upcoming development of commercial compensation arrangements for high-profile athletes and, for that matter, trickling down to other lesser commercially attractive ones.

The players would not be the only winners if they were allowed to unionize. The absence of labor unions hurts the institutions, too. Without unions imposing restraints on disciplinary actions, college administrators are susceptible to the kind of erratic decision-making that plunged the U into such perilous litigation that could end up costing the school – and the taxpayers – substantial amounts of money, in addition to the hit to its prestige and recruiting opportunities.

The coalescence of these recent cases may warrant revisiting the issue of unionization of college athletics, at least those in big-time sports activities.

It could begin right here in Gopherland.

Marshall H. Tanick is a constitutional law and employment law attorney with the Twin Cities law firm of Meyer Njus Tanick.

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