University of Illinois labor and employment relations professor Michael LeRoy is an expert in collective bargaining in athletics and the author of the legal casebook “Collective Bargaining in Sports and Entertainment.” In an interview with News Bureau business and law Editor Phil Ciciora, LeRoy discusses the implications of the National Labor Relations Board’s recent ruling that prevented Northwestern University football players from unionizing.
What should the NCAA take away from the National Labor Relations Board’s decision? Do you foresee this as the end of the movement to unionize college athletes?
The NCAA has recognized that its old-school ways must change. They are including student-athletes on most if not all of their committees, and they have loosened up on policies for compensating players, albeit in an amateur model.
I doubt there will be another organizing drive for college athletes, at least in the near term. I think the union will explore different strategies.
What is the next move for the College Athletes Players Association? Pursue an antitrust lawsuit against the NCAA in court?
An antitrust lawsuit makes a lot of sense for CAPA. The players unions in three of the four major professional sports – football, basketball and hockey – have used antitrust lawsuits when collective bargaining disappointed or failed them, and mostly to good effect for the players.
The only reason that the Major League Baseball Players Association has not filed an antitrust lawsuit is because the U.S. Supreme Court – in a now-discredited precedent – said that baseball was not interstate commerce and, therefore, was exempt from antitrust litigation. Even so, baseball players, including Curt Flood, have tried to improve their pay via antitrust lawsuits.
Even though it was technically a defeat, does the NLRB ruling actually pave the way for college athletes at public schools to try to unionize?
I think that overinterprets what happened here. Technically, other college football players in Illinois could go the same path as Northwestern under the state’s public-sector bargaining law. But if the NLRB ruled that extending jurisdiction would unsettle the industry of college football, why wouldn’t the state labor board reach the same conclusion?
Could the Northwestern case be considered an outlier since, it’s a private institution? Would a cohort of athletes from multiple schools across conferences have more success in another attempt to unionize?
Here’s where I think CAPA is probably heading: the low-pay service sector. Unions rarely succeed in unionizing the McDonaldses and the Wal-Marts of the world. So what are the unions doing? They’re having nationwide protests for a $15 minimum wage. They were big actors in the Affordable Care Act legislation. My point is that CAPA can do a lot for college athletes by being outside of collective bargaining.
CAPA may have lost, but did they win for losing?
Yes, I think CAPA is better for losing. Where are unions doing well in a collective bargaining relationship today? The public sector? No. The private sector? Nothing good there for unions, either. We may see labor concluding that it’s time to go back to its roots, when they were more militant and activist outside of labor law.
Indeed, the National Labor Relations Act was passed to move labor conflicts out of the streets and into conference rooms for negotiations.
