A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics NICHOLAS FRAM† T. WARD FRAMPTON†† INTRODUCTION “March Madness” is the culmination of the National Collegiate Athletic Association (“NCAA”) Division I basketball season, a carefully stage-managed tournament showcasing the country’s most talented college athletes. The spectacle is extraordinarily lucrative for many of those involved: in 2010, CBS and Turner Broadcasting paid the NCAA $10.8 billion for the rights to broadcast the event for the next fourteen years,1 and advertisers pay networks $1.22 million for a thirty-second opportunity to sell their products during the final game.2 Each victory during the tournament earns schools and their coconference members approximately $1.5 million from the NCAA,3 and coaches’ contracts regularly include six-figure performance bonuses rewarding tournament victories.4 At the center of it all, of † J.D., University of California, Berkeley, School of Law; M.A., Stanford University, 2007; Clerk to the Hon. George B. Daniels, Southern District of New York, 2012–2013 Term. †† J.D., University of California, Berkeley, School of Law; M.A., Yale University, 2006; Clerk to the Hon. Diane P. Wood, United States Court of Appeals for the Seventh Circuit, 2012–2013 Term. 1. Brad Wolverton, NCAA Agrees to $10.8-Billion Deal to Broadcast Its Men’s Basketball Tournament, CHRON. OF HIGHER EDUC. (Apr. 22, 2010), http://www.chronicle.com/article/NCAA-signs-108-Billion-Deal/65219/. 2. Anthony Crupi, March Madness Still One of the Biggest Sports Franchises, AD WEEK (Mar. 1, 2011), www.adweek.com/news/television/march- madness-still-one-biggest-sports-franchises-125889. 3. NCAA, 2010–2011 REVENUE DISTRIBUTION PLAN 7-9, http://www.ncaa.org/ wps/portal (access login required). 4. Jodi Upton, Salary analysis: NCAA tournament coaches cashing in, USA TODAY, (Mar. 30, 2011, 10:53 AM), http://www.usatoday.com/ sports/college/mensbasketball/2011-03-30-ncaa-coaches-salary-analysis_N.htm. 1003 1004 BUFFALO LAW REVIEW [Vol. 60 course, are the college athletes whose labor the NCAA insists is “motivated primarily by education and by the physical, mental and social benefits to be derived.”5 But in the mid-1990s—in a story that remains almost entirely untold nearly two decades later6—the unpaid amateurs of March Madness nearly brought the entire production to a halt. During the 1994–1995 season, NCAA basketball players formulated a plan to strike moments before critical post- season games, refusing to compete unless they received an equitable share of the revenue their labor generated. “They were going to get dressed, walk out on court, and refuse to play,” recalls Dr. William Friday, former president of the University of North Carolina and then cochair of the Knight Commission on College Athletics.7 Rumors of the potential disruptions panicked NCAA officials and television executives. Dr. Friday says: “You can imagine what would happen with the television networks, with ten million people waiting and nothing happening. . . . It would have been chaotic.”8 Strike plans were “pretty concrete,” according to former University of Massachusetts forward Rigo Núñez, but interventions by coaches and other officials thwarted the effort’s momentum.9 “If we had Twitter, if we had Facebook, this would definitely have had an impact on the NCAA tournament,” Núñez suggests, but the boycott ultimately unraveled amidst players’ fears that striking 5. NCAA, 2009–2010 DIVISION I MANUAL: CONSTITUTION, OPERATING BYLAWS, ADMINISTRATIVE BYLAWS, art.2.9 [hereinafter “NCAA DIVISION I MANUAL”]. 6. The 1995 strike was mentioned publicly for the first time on an episode of HBO’S Real Sports with Bryant Gumbel (HBO television broadcast Mar. 30, 2011); see also Taylor Branch, The Shame of College Sports, THE ATLANTIC, Oct. 2011, at 93 (discussing the planned boycott). Recent scholarly works on college athletics make no mention of the planned disruptions. See, e.g., CHARLES T. CLOTFELTER, BIG-TIME SPORTS IN AMERICAN UNIVERSITIES (2011); RONALD A. SMITH, PAY FOR PLAY: A HISTORY OF BIG-TIME COLLEGE ATHLETIC REFORM (2010). 7. Telephone Interview with William Friday, Founding CoChairman, The Knight Foundation Commission on Intercollegiate Athletics (Dec. 15, 2011). 8. Id. 9. Telephone Interview with Rigo Núñez, former college athlete, University of Massachusetts (Dec. 20, 2011). 2012] A UNION OF AMATEURS 1005 players would be “blackballed” and branded as “troublemakers.”10 Though the history is largely forgotten today, the planned 1995 strike would not have been the first work stoppage in big-time college athletics. In 1936, in a story followed closely by the black and left-wing press, the Howard University football team struck for several games, demanding adequate medical supplies for players, nutritional food, and access to campus jobs.11 Two years later, the Louisiana State University football team dismissed a player after “he dared to ‘agitate for a union’ of the players.”12 But the most high-profile disputes of the New Deal era centered on the University of Pittsburgh’s top- ranked football program. After an undefeated 1937 season garnered the squad a Rose Bowl invitation, players demanded $200 in pocket money for their participation.13 When university officials balked, the players voted 17-16 to boycott the game.14 The next fall, sophomores refused to 10. Dr. Friday’s version of events differs somewhat from that of Mr. Núñez. According to Dr. Friday, the strike rumors focused on one particular top-ranked team, whose players planned to walk out upon reaching the Final Four. See Telephone Interview with William Friday, supra note 7. Much to the relief of NCAA officials, the team was unexpectedly ousted early in the tournament. See Branch, supra note 6, at 93 (reporting same account). Mr. Núñez maintains that the high-profile athletes from over a dozen schools were discussing strike activities in both 1995 and 1996, but that fear of retaliation ultimately prevented the strike. See Telephone Interview with Rigo Núñez, supra note 9. 11. Howard Students in Football Strike, CHI. DEFENDER, Nov. 21, 1936, at 1 (noting 85% of student body participated in one-day solidarity walk-out); Jeannette Carter, Howard-Lincoln Thanksgiving Football Classic Is Called Off: Board Fears New Strike by Players, CHI. DEFENDER, Nov. 28, 1936, at 1. 12. MICHAEL ORIARD, KING FOOTBALL 247 (2004). 13. SMITH, supra note 6, at 79. 14. Id. This was not the only example of player agitation for bowl game bonuses in college football. In 1940, Stanford football players (successfully) demanded $50 per player to compete in the Rose Bowl, while in 1948, University of Arizona players (unsuccessfully) sought a $175 pay day. And as late as 1961, Syracuse University players refused to play in the relatively new, made-for- television Liberty Bowl if their demands for fancy wristwatches were not met. See DAVE MEGGYESY, OUT OF THEIR LEAGUE 87-89 (1970) (“The [Syracuse] athletic department had never seen the ball players get together on their own before and this, coupled with the talk of boycott, made them quickly agree to give us watches—and before the game as we had demanded.”); ORIARD, supra note 12, at 247 (discussing Stanford and Arizona player demands). 1006 BUFFALO LAW REVIEW [Vol. 60 attend pre-season training, striking “in order to settle ‘differences’ with the Pitt business department.”15 The thirty-odd members of the freshman squad threatened to strike again several months later. Their demands included four-year athletic scholarships, shorter working hours, accommodation for class time missed due to football obligations, and collective bargaining rights.16 The press quipped that “all the Pitt freshmen needed to do now was to join the CIO and turn over their demands for collective bargaining, wages and hours and relief to John L. Lewis.”17 College athletics have changed dramatically in the intervening years, but now, after seven decades, talk of strikes and players unions is returning. In January 2012, the New York Times published a detailed proposal to begin paying college athletes, including a hypothetical “players’ union” to negotiate with the NCAA.18 The Chicago Sun- Times’s lead sports columnist exhorted college football players to strike the following week: “If you don’t strike, using the time-honored American—yes, patriotic!— technique of banding together over endless exploitation and walking out, sitting down or disrupting the system en masse, you will always be pawns.”19 But perhaps most significantly, unlike in 1995, college athletes now have a member-driven advocacy group to advance their interests, 15. Horrors! Pitt Frosh Grid Players Get Tuition Bills!, L.A. TIMES, Nov. 16, 1938, at A11; Pitt Frosh ‘Go Free’: ‘Misunderstanding’ Causes Cancellation of Gridders’ Tuition, L.A. TIMES, Nov. 24, 1938, at A28. 16. Francis Wallace, The Football Laboratory Explodes: The Climax in the Test Case at Pitt, SATURDAY EVENING POST, Nov. 4, 1939, at 21. The university’s refusal to compensate athletes soon prompted the resignation of legendary head coach Jock Sutherland, who characterized the university’s refusal to compensate athletes as the “verse of daffodils and pink sunsets and milky moonlight and anemic idealism.” High-Pressure Football Defended By Sutherland, WASH. POST, Apr. 12, 1939, at 19. Students rioted in protest of Sutherland’s departure and the university’s refusal to compensate athletes. Pitt Students Strike; Protest School Policy, CHI. DAILY TRIB., Mar. 11, 1939, at 21. 17. Wallace, supra note 16, at 21. 18. Joe Nocera, Here’s How To Pay Up Now, N.Y. TIMES, Jan. 1, 2012, at MM33. 19. Rick Telander, A revolting development: College football players need to go on strike and demand a piece of the lucrative pie, CHI. SUN-TIMES, Jan. 9, 2012, at 58. 2012] A UNION OF AMATEURS 1007 notably with union backing.20 During a brief window in October 2011, rank-and-file organizers with the National College Players Association (“NCPA”) gathered signatures from over three hundred college football and basketball players at five targeted schools (including the entire UCLA football and basketball rosters) demanding that athletes receive a greater share of revenue from the NCAA.21 A union of college athletes is no longer a theoretical exercise: cultural momentum and a nascent organizational framework already exist.22 These developments add urgency to this Article’s central inquiry: would existing labor law allow such a union? If the NCPA were to collect players’ signatures on union authorization cards rather than on protest petitions, could players compel universities to negotiate over the terms and conditions of their service? If school officials were to retaliate against athletes who circulated the October 2011 petition, or against athletes who collectively withheld their labor, could such punishment constitute an unfair labor practice?23 As college athletes continue to agitate 20. See National College Players Association, NCPA & USW—A Winning Team, http://www.ncpanow.org/ncpa_usw?id=0003 (last visited June 12, 2012) (noting collaboration between United Steelworkers and NCPA). 21. Alan Scher Zagier, College athletes press NCAA reform, ASSOCIATED PRESS, Oct. 24, 2011, available at http://rivals.yahoo.com/ncaa/football/news? slug=txncaaathletesrights (noting campaign focused on Arizona, Georgia Tech, Kentucky, Purdue, and UCLA). 22. Our focus for this Article, like that of the NCPA’s organizing campaign, is limited to NCAA Division I scholarship athletes in “revenue-generating sports” (football and men’s basketball). See Robert A. McCormick & Amy Christian McCormick, The Myth of the Student-Athlete: The College Athlete as Employee, 81 WASH. L. REV. 71, 72 (2006) [hereinafter “McCormick & McCormick, Myth”]. These two sports are unique in terms of the degree to which they have been commercialized, the millions of dollars spent on such programs, and the vast revenues that college athletes in these sports generate. See id. at 75, n.15 (discussing rationale for treating football and men’s basketball differently than other college sports). For reasons discussed in Part I.A., infra, we refer to such individuals as “college athletes” rather than the more common moniker “student-athlete.” 23. While this Article focuses mainly on the prospects for collective bargaining in college athletics, it is important to remember that labor law protects all employees engaged in “concerted activity” in the workplace, regardless of their intent to formally unionize. See NLRB v. Washington Aluminum Co., 370 U.S. 9, 12 (1962). 1008 BUFFALO LAW REVIEW [Vol. 60 against a recalcitrant NCAA, the future of a multibillion dollar industry hinges on these questions. In the last twenty years, more than a half-dozen law review articles have suggested that the National Labor Relations Board (“Board” or “NLRB”) should recognize Division I scholarship athletes in revenue-generating sports as “employees” under federal labor law.24 These scholars emphasize that, behind the veil of amateurism, college athletes’ relationships with universities bear all the hallmarks of classic employment. Athletes labor under the direction and control of university coaches and officials; this work is unconnected to (indeed, often at odds with) their educational objective as students, and universities provide valuable scholarships, now potentially supplemented with up to $2000 in “stipend” payments,25 in consideration for these prized services. Several other law review articles have questioned whether this is sufficient to meet the statutory definition of “employee” under the NLRA.26 But practically 24. See Leroy D. Clark, New Directions for the Civil Rights Movement: College Athletics as a Civil Rights Issue, 36 HOWARD L.J. 259, 278 (1993) (“[M]uch of the reality of college sports belies that interpretation [that student-athletes are not ‘employees’ under the NLRA], as it is very clear that the athletes are paid for their services . . . .”); J. Trevor Johnston, Show Them The Money: The Threat of NCAA Athlete Unionization in Response to the Commercialization of College Sports, 13 SETON HALL J. SPORT L. 203, 231 (2003); Amy Christian McCormick & Robert A. McCormick, The Emperor’s New Clothes: Lifting the NCAA’s Veil of Amateurism, 45 SAN DIEGO L. REV. 495, 496-500 (2008); Robert A. McCormick & Amy Christian McCormick, A Trail of Tears: The Exploitation of the College Athlete, 11 FLA. COASTAL L. REV. 639, 644-48 (2010); McCormick & McCormick, Myth, supra note 22, at 155; Nathan McCoy & Kerry Knox, Flexing Union Muscle–Is it the Right Game Plan For Revenue Generating Student-Athletes in their Contest for Benefits Reform with the NCAA?, 69 TENN. L. REV. 1051, 1053- 54, 1077 (2002); Stephen L. Ukeiley, No Salary, No Union, No Collective Bargaining: Scholarship Athletes Are An Employer’s Dream Come True, 6 SETON HALL J. SPORT L. 167, 172 (1996); Jonathan L.H. Nygren, Note, Forcing the NCAA to Listen: Using Labor Law to Force the NCAA to Bargain Collectively with Student-Athletes, 2 VA. SPORTS & ENT. L.J. 359, 371 (2003). 25. See infra Part I.C. (discussing a new NCAA rule change regarding supplementary stipends). 26. Julia Brighton, The NCAA and the Right of Publicity: How the O’Bannon/Keller Case May Finally Level the Playing Field, 33 HASTINGS COMM. & ENT. L.J. 275, 286 (2011) (noting the “difficulty of characterizing student- athletes as ‘employees’”); Virginia A. Fitt, The NCAA’s Lost Cause and the Legal Ease of Redefining Amateurism, 59 DUKE L.J. 555, 573-76 (2009); Thomas R. Hurst & J. Grier Pressly III, Payment of Student-Athletes: Legal & Practical 2012] A UNION OF AMATEURS 1009 the entire body of this scholarship has ignored one critical point: the NLRA, which governs labor relations only in the private sector,27 simply does not govern the majority of college athletes at public colleges and universities.28 To the extent that NCAA athletes at public institutions are “employees,” they are public employees, and state labor law dictates whether unionization is a feasible option.29 This Article offers the first comprehensive analysis of NCAA athletics under state labor law, reaching a novel and potentially game-changing conclusion: that Division I athletes at many top-ranked programs likely enjoy a legal right to unionize under state law. Part I of this Article traces the historical development of the “myth of the student-athlete,” discusses the commercial stakes of today’s big-time college athletics, and explores the economic position of the college athlete within this regime. In Part II, Obstacles, 7 VILL. SPORTS & ENT. L.J. 55, 70 (2000) (arguing “student-athletes do not qualify as ‘employees,’” but noting that “if the NCAA adopted the stipend proposal [like that enacted in late 2011] . . . student-athletes would more than likely meet the NLRA ‘employee’ definition . . . [and enjoy] the right to unionize and bargain collectively.”); Marc Jenkins, The United Student-Athletes of America: Should College Athletes Organize In Order To Protect Their Rights and Address the Ills of Intercollegiate Athletics?, 5 VAND. J. ENT. L. & PRAC. 39, 46 (2002) (“Given courts’ deference to the NCAA, and the following decisions in the workers’ compensation context, this argument [that student-athletes are ‘employees’ under the NLRA] would probably fail.”); Rohith A. Parasuraman, Unionizing NCAA Division I Athletics: A Viable Solution?, 57 DUKE L.J. 727, 739-45 (2007). 27. 29 U.S.C. § 152(2) (2006) (“The term ‘employer’ . . . shall not include the United States or any wholly owned Government corporation . . . or any State or political subdivision thereof . . . .”). 28. Many of the articles apparently fail to recognize this point altogether. See, e.g., Brighton, supra note 26, at 286-88; Hurst & Pressly, supra note 26, at 70- 71; Jenkins, supra note 26, at 46, 48; Parasuraman, supra note 26, at 739-45. Others observe in passing that state labor law governs public institutions, but devote their analyses exclusively to the NLRA. See, e.g., Clark, supra note 24, at 278 n.53; Johnston, supra note 24, at 222-23; McCormick & McCormick, Myth, supra note 22, at 86-89; McCoy & Knox, supra note 24, at 1053; Ukeiley, supra note 24, at 176-77. The sole exception is Jonathan L.H. Nygren’s Forcing the NCAA to Listen, supra note 24, at 371-84, which considers college athletes’ “employee” status under both federal law and the labor law of one state— California. 29. See 29 U.S.C. § 152(2) (excluding employees of state and local government from NLRA protection); Clark, supra note 24, at 278 n.53. 1010 BUFFALO LAW REVIEW [Vol. 60 we present the various tests the NLRB has articulated in identifying “employees” entitled to statutory protection and assess the status of college athletes under these tests. We turn then to the varying approaches state labor boards and courts have adopted in pursuing this same inquiry in Part III, and explore the extent to which college athlete unions may be possible under state law. Though some states forbid public employees from unionizing, many endorse the practice, and (most significantly for our purposes) several states have shown considerable solicitude to student- workers seeking recognition as “employees” in the public university setting. The Article concludes in Part IV by discussing the practical consequences of these findings, and the theoretical difficulties implicated by reconceptualizing college athletes as workers. Though some have argued that recognizing athletes as “employees” would fundamentally taint college sports,30 we offer a counterintuitive suggestion: allowing college athletes to unionize may help preserve the institution as a unique, educationally-focused alternative to professional athletics. In adopting this approach, this Article represents an intervention in the existing scholarship in several significant ways. First, as noted above, federal labor law simply cannot apply to most big-time college athletes. Of the sixty-six schools constituting the main six Division I Bowl Championship Series football conferences, fifty-five are public;31 of the fifty-six top-ranked basketball programs from 2007–2011, thirty-eight are public.32 For these college athletes, federal labor law is all but irrelevant. Second, notwithstanding language in recent opinions suggesting 30. See, e.g., Joe Nocera, Here’s How to Pay Up Now, N.Y. TIMES, Dec. 30, 2011, at MM30 (quoting NCAA president Mark Emmert as stating “If we move toward a pay-for-pay model—if we were to convert our student athletes to employees of the university—that would be the death of college athletics.”). 31. Six conferences—the Atlantic Coast Conference (ACC), Big 12, Big East, Big Ten, Pacific-12, and Southeastern Conference (SEC)—are considered the major BCS conferences, and each conference receives automatic berths to Bowl Championship Series bowl games every year. 32. See Associated Press NCAA Men’s Basketball Rankings, 2006–2011, ESPN.com, http://espn.go.com/mens-college-basketball/rankings (last visited Apr. 4, 2012) (the sample is made up of the fifty-six basketball programs that have appeared in the final AP “Top 25” rankings for the five seasons through the 2011 season). 2012] A UNION OF AMATEURS 1011 college athletes may meet the act’s statutory definition of “employees,” we remain somewhat wary of an approach that looks to the NLRB as an avenue for advancing collective bargaining rights. The Board has become “the flashpoint for unprecedented contentiousness” in recent years,33 with even its modest efforts to defend workers’ rights incurring virulent criticism.34 As numerous labor law scholars have argued, the Board has been largely ineffective in “keep[ing] the Act up to date”35 and “keeping pace with changes”36 to vindicate the interests of workers in a twenty-first century economy.37 Third, more generally, this Article highlights the growing centrality of state law in American labor relations and illustrates the divergent ways in which courts and labor boards have interpreted state and federal statutes, particularly with respect to student-employees.38 Our state- level focus is both necessitated by and indicative of the changing landscape of today’s labor movement, which now counts fewer union members in the private sector (governed 33. Tim Mak, It’s World War III at the NLRB, POLITICO (Dec. 26, 2011, 8:57 AM), http://www.politico.com/news/stories/1211/70856.html. 34. See Steven Greenhouse, Labor Board’s Exiting Leader Responds to Critics, N.Y. TIMES, Aug. 30, 2011, at B1 (noting criticisms that the Board embodies “Marxism on the march” and that its members are “socialist goons”). 35. Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L. REV. 1527, 1558-59 (2002). 36. Benjamin I. Sachs, Employment Law as Labor Law, 29 CARDOZO L. REV. 2685, 2686 (2008). 37. See also Henry H. Drummonds, Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the States to Make More Labor Relations Policy, 70 LA. L. REV. 97, 97 (2009) (“The road forward for labor relations policy in the United States lies not in Washington, D.C., but in state capitols.”); Alek Felstiner, Working the Crowd: Employment and Labor Law in the Crowdsourcing Industry, 32 BERKELEY J. EMP. & LAB. L. 143, 197 (2011) (“Our gap-ridden and outdated legal regime simply does not accommodate new labor models very well.”); Paul Weiler, Promises to Keep: Securing Workers’ Rights to Self-Organization Under the NLRA, 96 HARV. L. REV. 1769, 1769 (1983) (“Contemporary American labor law more and more resembles an elegant tombstone for a dying institution.”). 38. See Benjamin I. Sachs, Labor Law Renewal, 1 HARV. L. & POL’Y REV. 375, 376 (2007) (highlighting “labor law regime[s] developed by state governments” as source of “new dynamism” in the field of labor law). 1012 BUFFALO LAW REVIEW [Vol. 60 primarily by the NLRA) than in the public sector (governed primarily by state labor law).39 I. THE MYTH OF THE “STUDENT-ATHLETE” A. Creation Stories When William Rainey Harper became the first president of the University of Chicago in 1892, among his first (and highest paid) faculty appointments was former All-American football standout Amos Alonzo Stagg.40 Intercollegiate athletic competitions had blossomed over the past five decades,41 and Harper recognized that an acclaimed football squad could be a “[d]rawing card” for the fledgling institution.42 He charged his new coach with “develop[ing] teams which we can send around the country and knock out all the colleges. We will give them a palace car and a vacation, too.”43 Department chairs quipped that Harper was “The P.T. Barnum of Higher Education,”44 but his marketing strategies worked: Chicago soon built a nationally-renowned football program (despite allegations 39. In 2011, the Department of Labor’s Bureau of Labor Statistics reported 7.6 million union members in the public sector (37.0% density) compared to 7.2 million union members in the private sector (6.9% union rate). See Bureau of Labor Statistics, Union Members Summary, Jan. 27, 2012, http://www.bls. gov/news.release/union2.nr0.htm. As a matter of political (as opposed to scholarly) importance, state labor law’s moment plainly has arrived. The pitched battles being fought over public-sector collective bargaining in Arizona, Wisconsin, Indiana, and several other states reflect its growing importance for Labor (and its critics). 40. Hal A. Lawson & Alan G. Ingham, Conflicting Ideologies Concerning the University and Intercollegiate Athletics: Harper and Hutchins at Chicago, 1892– 1940, 7 J. SPORT HIST. 37, 42, 44 (1980). 41. The first recorded intercollegiate competition is generally thought to be a crew meet between Harvard and Yale in 1852. ALLEN L. SACK & ELLEN J. STAUROWSKY, COLLEGE ATHLETES FOR HIRE: THE EVOLUTION AND LEGACY OF THE NCAA’S AMATEUR MYTH 17 (1998). 42. Lawson & Ingham, supra note 40, at 41. 43. Id. at 42. 44. Id. at 41.