81 U. Chi. L. Rev. Dialogue 44 (2014)

handle is hein.journals/uchidial81 and id is 1 raw text is: 










     How a Labor Dispute Would Help the
                             NCAA
                        Michael H. LeRoyt


                          INTRODUCTION
    When a ruling by a National Labor Relations Board (NLRB)
regional director determined that Northwestern University foot-
ball players who receive athletic scholarships are employees'
and therefore eligible to vote in a union-representation election,
the multi-billion dollar enterprise known as Division I football
was rocked to its foundation. Whether this ruling is upheld on
appeal or overturned, college football will not be unionized be-
cause many players do not fall under the jurisdiction of the
NLRB.2
    But this unionizing effort will not end there. It is part of a
broad array of player lawsuits to challenge the National Colle-
giate Athletic Association (NCAA).3 These athletes are already
following in the path of National Football League (NFL) players,
who eventually sued their league under the Sherman Act after
their disastrous 1987 strike.4 From 1992 to 2011, those players
negotiated a series of favorable antitrust settlement agreements
that superseded in importance their collective bargaining under
the National Labor Relations Act (NLRA).5

   f Professor, School of Labor and Employment Relations and College of Law, Uni-
versity of Illinois at Urbana-Champaign. I dedicate this Essay to the memory of my
mother, Carol LeRoy. I also extend appreciation to Margaret Schilt.
   I Northwestern University, Employer, and College Athletes Players Association
(CAPA), Petitioner, 2014 WL 1246914, *1 (NLRB 2014).
   2 The National Labor Relations Act (NLRA), 29 USC  151-69, excludes any indi-
vidual . . . or any individual employed by . . . any other person who is not an employer as
herein defined. NLRA  2(3), 29 USC  152(3). The term employer excludes any State
or political subdivision thereof. NLRA  2(2), 29 USC  152(2). Thus, players at public
universities cannot form a union under the NLRA.
   3 See Tom Farrey, Jeffrey Kessler Files against NCAA, ESPN College Sports
(ESPN Mar 18, 2014), online at http://espn.go.com/college-sports/story/_/id/10620388/anti
-trust-claim-filed-jeffrey-kessler-challenges-ncaa-amateur-model (visited June 7, 2014).
   4  See Paul D. Staudohar, The Football Strike of 1987: The Question of Free Agency,
111 Monthly Labor Rev 26, 31 (1988).
   5 See White v National Football League, 766 F Supp 2d 941, 944 n 1 (D Minn 2011)
(The parties amended [their agreement] in 1993, 1996, 2002 and 2006.).


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