Published Sunday, February 2, 2014 at 1:00 am / Updated at 1:40 pm
Jonathan Mahler: NCAA should welcome players union

Hours after the story broke last week that Northwestern University’s football team had filed paperwork to form a union, the NCAA made its position clear: Student-athletes cannot also be employees, or at least not without defeating “the purpose of college: an education.” (Better quit that work-study job at the library, kid; it’s making you dumb.)

The response was not a surprise. It was also extremely shortsighted. The NCAA should be begging college athletes to form a union.

The players aren’t actually asking for much. Their “demands,” laid out on the website of the National College Players Association, include making college football safer by limiting contact at practices and adding independent concussion experts at games. They want schools to pay medical expenses related to sports-related injuries. They want athletic scholarships to cover the full costs of attending college, not just tuition but also expenses such as laundry or going home for vacation. They want a small percentage of the huge sums generated by college sports to be invested in continuing education for athletes who go pro before graduating.

What these players want is relatively modest. Relative to what, you say? To the NCAA’s most fearsome competition: a free market.

Consider, most notably, O’Bannon v. NCAA, the ongoing lawsuit challenging the association’s refusal to give college athletes a cut of the profits from video games that use their likenesses. The logical extension of that challenge — and an increasingly likely proposition — is that college athletes are going to be compensated for their labor. The only question is how much.

Of course, the NCAA believes it can continue to concede nothing. Maybe it’s right. The NCAA invented the term “student-athlete” some 60 years ago because it was worried about lawsuits from injured college athletes seeking workers compensation. It was a semantic dodge that has served the NCAA well: Courts have historically bought the argument that college athletes should not be considered “employees.”

But we are living in a much different moment. Public perception has changed, and so have practical realities. Can the courts be far behind?

College sports are a multibillion-dollar business. If the athletes who make it popular and lucrative — after spending countless hours training, traveling and playing — aren’t “employees,” then what does the word mean?

There is growing scientific evidence about the dangers of football, yet the young men who fill their schools’ stadiums and coffers, selling branded merchandise and ensuring generous TV contracts, shouldn’t be given medical coverage and insured against long-term disability as the groundskeepers and athletic directors and coaches are?

NCAA President Mark Emmert continues to prattle on about the sanctity of the “student-athlete,” the amateur. At this point, he might as well be Nicolae Ceausescu touting the glories of communism to a square filled with citizens in the throes of democratic revolt.

Northwestern’s proposed union gives Emmert and the NCAA a life preserver, a way to maintain something pretty closely resembling the lucrative status quo, including its asymmetrical power arrangement.

Every major U.S. professional sports league would seize such an opportunity. Players unions and collective bargaining provide legal cover for the leagues to perform invaluable tricks — salary caps, revenue sharing, drafting players out of college instead of launching bidding wars for their services — that would otherwise blatantly violate antitrust law.

During the last NFL labor dispute, the players decertified their union precisely to gain more leverage against the owners. The league, in turn, asked the court to reinstate the union, fearing its demise would result in players earning what the free market would bear. “I’m not quite sure why the NCAA hasn’t embraced the same philosophy,” said Boston College sports economist Warren Zola.

Because it’s the NCAA. Rather than accepting — never mind embracing — a chance to incrementally reform the status quo, it appears willing to blow the whole thing to bits.

If the NCAA is lucky, it will fail and Northwestern’s union will be certified by the National Labor Relations Board. If, however, it succeeds in thwarting the Northwestern players’ limited requests, it will leave itself open to much more ambitious efforts down the road.

Universities may soon be paying a lot more for the next Johnny Manziel than just tuition and gas money.

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