The NCAA's Fishy Argument Against a Union for Players

The NCAA doesn’t want football players forming a union, but what employer does? Michael Hickey/Getty

Whales are curious creatures, animals that nearly defy classification. They spend most of their lives beneath the ocean's surface, feeding on aquatic life and propelling themselves through the water by means of a fluked tail and fins.

There's nothing a whale resembles more than a fish—except that whales are mammals. Certainly they have piscine traits (ask Captain Ahab), but a few hundred years ago, a Swedish zoologist named Carl Linnaeus, a.k.a., the "father of modern taxonomy," determined that whales are mammals. Not fish. Even if they sure do look and behave a lot like fish.

Scholarship football players are also curious creatures. They are full-time students who must maintain a certain grade-point average and adhere to the rules of campus life. They are also indispensable components of an athletic program, working the grind pretty much year-round for a team that annually rakes in anywhere from a few million dollars to tens of millions. Their compensation is a full scholarship, room and board. Are they student-athletes or employees? Mammals or fish?

That debate is currently being waged in Evanston, Ill., on the campus of one of the nation's most prestigious institutions, Northwestern University. On Friday, April 25, members of the Wildcat football team were afforded the opportunity to vote on whether or not to form a union, a ballot that came about after a former teammate, senior quarterback Kain Colter, petitioned the National Labor Relations Board (NLRB) to recognize scholarship football players as employees.

"Right now the NCAA is like a dictatorship," Colter said at the time. "No one represents us in negotiations. The only way things are going to change is if players have a union."

And the only way players can have a union is if the NLRB recognizes them as employees. In March, after listening to testimony from both Colter and Northwestern, NLRB regional director Peter Sung Ohr, playing the role of Carl Linnaeus, acceded to Colter's point of view. In a 24-page decision, Ohr ruled that scholarship football players are employees and thus have the right to unionize. "Players receiving scholarships to perform football-related services for the Employer under a contract for hire in return for compensation," wrote Ohr in a 24-page decision, "are subject to the Employer's control and are therefore employees."

Northwestern appealed the decision, formally known as a request for review, with the NLRB headquarters in Washington, D.C. That appeal is pending. Colter has aligned himself with the College Athletes Players' Association (CAPA), whose president, Ramogi Huma, is a former linebacker at UCLA.

CAPA's argument is that since playing football has zero relationship to earning a degree, the scholarship is thus payment for playing football. Hence, players are employees. "The players receive no academic credit for participation in the football program," CAPA wrote, "and that participation has nothing to do with earning their degrees."

Northwestern's rebuttal is simple: Ninety-seven percent of Wildcat football players do earn degrees, so how can football players argue that they are not students?

Of all the schools that a proposed players' union might have chosen to attack on this front, Northwestern may have been the poorest choice. No institution among the 120 FBS institutions has a higher graduation rate. And Northwestern, unlike most of its peers, actually grants guaranteed four-year scholarships (a value of approximately $240,000) to incoming freshmen, as opposed to four renewable one-year scholarships.

While CAPA insists that the goal of unionization is not that scholarship athletes be paid ("College athletes are already paid," says Huma, referring to their scholarships, room and board, etc.), a pro-union vote would clearly be a step in that direction.

By the way, it should be noted that walk-on players, i.e., those not on scholarship, are not included in Ohr's union and would not be part of any proposed union. Get ready for Rudy II: Picket-Line Boogaloo.

Is college football heading toward an apocalypse or an age of enlightenment? What's really at stake here? And, in a sport in which the gain and loss of green turf determines victory, isn't all of this simply a turf war over the most valuable green of all: money?

"I want to thank you for pushing for this union thing, because now, when football goes away forever, I can blame unions instead of concussions." —Stephen Colbert to Ramogi Huma, The Colbert Report

College football has been under attack since its inception. During the very first contest, waged between Princeton and Rutgers in November 1869, a professor who observed the carnage warned, "You men will come to no Christian end."

For nearly a sesquicentennial, college football has enacted a double standard when faced with amateurism (and with violence, but that's another tale). In the era of Knute Rockne and Jim Thorpe, 100 years ago, elite college players were known to sneak away on Sundays to play in semi-pro games under assumed names. A West Point linebacker played semi-pro baseball under the pseudonym "Wilson" (real name: Dwight D. Eisenhower).

Last year, Heisman Trophy–winning quarterback Johnny Manziel nearly forfeited his eligibility after allegedly accepting payment for autographing footballs and other memorabilia, a reported sum of around $10,000... yet the coach at Alabama, Nick Saban (whose Crimson Tide lost to Manziel's Texas A&M Aggies), earns $7 million per year. In fact, in 40 of 50 states, the highest-compensated public employee is a college football coach.

"[Players] are helping bring in money, and they don't get any of it, and they are the ones out there putting in hard work all the time," Auburn running back Corey Grant recently told "I think they should get some type of reward or something from that."

Television contracts for college football run into the billions of dollars. The Southeastern Conference, which is home to both Alabama and Auburn, has a deal with ESPN that runs through 2034 and is worth at least $165 million per year—and that's not including the SEC's television contract with CBS.

The University of Texas has a $170 million athletic budget, its own television network (operated in conjunction with ESPN) and an athletic director who is actively seeking to play football games in the Midwest and the Middle East. (Texas may be the only athletic department that needs a foreign policy adviser.) "A lot of our alums spend time in the Middle East," Longhorn athletic director Steve Patterson recently said, "and Dubai is a place that wants to use sports to help put itself on the map. So we'll have some conversations and we'll see where they lead."

The Longhorn football program sounds a lot less like an extracurricular activity than it does a global brand. Hook 'em.

The seminal issue is this: Should a majority of the nation's most prestigious and/or largest universities serve as a de facto minor league for the National Football League, an organization that, by the way, not only enjoys tax-exempt status but can also afford to pay its commissioner, Roger Goodell, an annual salary of $43 million?

College football predates the NFL by more than 50 years—in 1923 Red Grange was playing in front of 100,000-plus fans at the University of Illinois while the Green Bay Packers were hosting the Duluth Kelleys in front of 4,000 at a minor league baseball park. The college version was immensely popular and, for schools, lucrative, long before NFL careers were a viable option. Jay Berwanger, who won the inaugural Heisman Trophy in 1935, spurned an NFL career and briefly turned to sports writing (!) before taking a job in manufacturing.

While that dynamic no longer exists, the branding of institutions through their college football prowess ("Cheer, cheer for old Notre Dame") remains both a seductive and lucrative prospect for schools. Meanwhile, there is little inducement for the NFL to launch a minor league when colleges are doing such a fine job for them.

Which leads us to the players, or student-athletes or employees—whichever you prefer. While approximately three percent of FBS players will ever play a down in the NFL, a much larger percentage matriculate hoping that they will play on Sundays. Because the NFL refuses to draft a player until he is three years removed from high school—and even won a Supreme Court case upholding its right to do so (!)—there exists no alternate route, no service lane, for NFL hopefuls who have no interest, or business, in pretending to be college students. To draw upon a metaphor, they are only at Starbucks for the free WiFi.

Whether or not a college football player thinks himself as more of a fish than a mammal or vice versa, the reality is that he is uniquely both. The true whales, to employ a slang version of the term, are the NCAA, conferences and athletic departments who earn hundreds of millions each year through college football. And they are doing their best to elude capture.

"If a court decided that players...must be paid," Big Ten commissioner Jim Delany told last year, "I don't think we'd participate in that. I think we'd choose another option." Delany earns approximately $2 million per year. How much would he earn if Big Ten football resembled the Ivy League?

Opponents of unionization, be it NCAA president Mark Emmert, who earns $1.5 million per year, or the thousands of college alumni six figures deep in college debt, are only too happy to point out that a free college education is a reward. Proponents of unionization will continue to argue that a full scholarship is only the beginning. Whales may be mammals, they'd say, but if you want to save them, you'd better treat 'em like fish.

About the writer

AND Michael DePaoli

John Walters is a writer and author, primarily of sports. He worked at Sports Illustrated for 15 years, and also at NBC Sports where he won two Sports Emmys for his on-air writing at the Athens and Beijing Olympics. He has also worked at AOL Fanhouse and The Daily, as well as waited at a popular Manhattan steakhouse. Walters is the author of The Same River Twice: A Season With Geno Auriemma and the Connecticut Huskies. He is the founder of, a pop culture blog that he updates daily. He holds a B.A. from the University of Notre Dame, where he studied pre-med and rowed crew.

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