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Senators Say Northwestern Unionization Effort Prompts Important Questions

Lawmakers could intensify debate on a historic attempt by Northwestern University football players to become the first college athletes to unionize, from holding highly visible Capitol Hill hearings to potentially expanding federal labor laws to protect the rights of student-athletes.

Beltway politicians often have weighed in on, and to some degree shaped, sports policy. In the past decade alone, Congress has amplified the public dialogue on steroids in baseball, the college football bowl system and concussions in the National Football League, often to the chagrin of the leagues involved. The national debate over whether college athletes are entitled to the benefits other employees receive could prove no different.

“I’ve always said, they ought to consider paying players because the coach gets millions of dollars and the player gets nothing. I think we ought to consider compensation,” said Sen. John McCain, R-Ariz., an avid sports fan. “I don’t see unionization getting that far, but if they want to try, that’s fine.”

The politicians, lobbyists, labor organizations and lawyers approached by CQ Roll Call for this story all seemed to believe the question of whether college athletes are entitled to more rights — from health care benefits to scholarship guarantees and even payment — is worth asking.

It will all boil down to an essential fight between the powerful National Collegiate Athletic Association and its detractors over the definition of “employee” and whether that designation fits the more than 400,000 NCAA student-athletes. In 2012, the NCAA generated more than $870 million in revenue.

“There’s no difference in the way professional and college sports are managed these days. If you look at the BCS Championship and the Super Bowl, the only difference is that after the BCS Championship, the players go to class the next day ” said ESPN college basketball analyst Jay Bilas, who is also a lawyer at the firm Moore and Van Allen in Charlotte, N.C.

Sen. Richard Blumenthal, D-Conn., a member of the Judiciary Committee, said the panel would have at least partial jurisdiction over the student-athlete employment question and should consider looking into the issue.

“College athletics more and more seems to involve elements of quid pro quo that can be compensation and may give students rights of employees even if they don’t have the full measure of compensation that full-time workers may have in other contexts,” Blumenthal said.

“I’d be very interested in exploring it and even broadening the law if necessary to give more rights to student-athletes because the blunt fact is that they are in a very unequal bargaining position when it comes to their rights and interests,” Blumenthal said. “They are in many ways compensated by schools for playing sports, but they have no real rights in that bargaining process and their rights deserve great respect legally as well as practically.”

But Sen. Richard J. Durbin, D-Ill., also a member of the Judiciary Committee, does not see as much nuance in the case.

“It’s hard for me to wrap my head around the idea that they’re employees and would be part of a labor organization,” he said.

Durbin has a particular interest in the players’ attempt to unionize, beyond the fact they filed at the Chicago office of the National Labor Relations Board, because a large part of the players’ complaint was about access to health care. Durbin held hearings in 2012 on concussions in the NFL and introduced legislation to create youth concussion laws in 2013.

“There are legitimate player issues relative to the economics of college football, the compensation of any players — and they’re strictly limited now — and the concussion protocols,” Durbin told CQ Roll Call. “At the best schools, [athletes] generate a huge amount of revenue for the school, and I think they need to be treated accordingly.”

Still, the players face long odds against the multibillion-dollar interests of the NCAA, which does not pay nor extend benefits beyond tuition to the athletes who play a significant role in generating its cash flow.

Bilas gave several examples of how the athletes could make their employment case, which he admitted would be a “long legal slog.” He cited college baseball and hockey players already drafted and under contract with professional teams. And he noted that in recent weeks, there have been NCAA basketball games in which players still played — even though students’ classes were canceled as result of massive snowstorms and freezing temperatures.

“The NCAA wants to say they’re not a cartel, but they are. … All of the athletes, revenue and non-revenue, they’re being exploited. Everyone else is making fair-market value for what they do, every student, every administrator, every coach. That’s exploitation.”

Sen. John Hoeven, R-N.D., illustrated Bilas’ first point with an example from his home state. “University of North Dakota hockey, almost every year, they have underclassmen drafted by NHL teams that can go professional after two years of college and get professional contracts. Now, that doesn’t happen sometimes, that happens every single year and sometimes [for] four and five players,” he said. “So the fact that this whole discussion is reaching into collegiate levels, whether it’s football or hockey, you pick a sport, is not surprising.”

Like most powerful sports entities, the NCAA has a Washington lobbying presence, which certainly would engage if Congress were to take up this issue. In an email, NCAA Director of Public Affairs Stacey Osbourn told CQ Roll Call, “Our DC contacts are available to answer any questions they may receive from the Hill.”

Though legislative recourse might be difficult, according to multiple sources, the most significant way lawmakers could grow the issue is just by talking about it. One K Street source familiar with sports lobbying pointed to the dual tracks any issue can take — legislative and public relations — and noted that most sports questions have gravitated toward the publicity side of that equation. That approach is especially attractive in this case, the source said, because it involves players at a Chicago-area university who could draw the attention of home-state President Barack Obama. Obama, who says he watches “SportsCenter” daily, has weighed in on college football issues, such as the playoff question, and a visit from the players to D.C. would not go unnoticed.

Given the involvement of national labor groups, which are looking to expand membership for their influence to survive, that D.C. echo-chamber effect could be coming soon.

“Too many athletes who generate huge sums of money for their universities still struggle to pay for basic necessities, and too many live in fear of losing their scholarships due to injury or accident,” Leo Gerard, president of the United Steelworkers union that is backing the Northwestern Wildcats players, said in a statement. “Our commitment to college athletes in their pursuit of basic protections will not cease.”

Democrats could have a particular stake in this debate, not only because they are the party more philosophically aligned with the labor movement but because they also are the party that profits from it. In 2012, for example, USW made $3.1 million in political contributions, all to Democrats, according to data compiled by Union members have also been crucial for Democratic get-out-the-vote efforts, especially in the Midwest. In 2008, when the current in-cycle senators were last on the ballot, USW gave $15,500 to Democrat Al Franken of Minnesota and $10,000 each to Tom Harkin of Iowa, Tim Johnson of South Dakota and Jay Rockefeller of West Virginia. The group also spent $5,000 in Mary L. Landrieu’s race in Louisiana and $5,000 in Michigan for Debbie Stabenow.

But the football players, unions and their supporters have a long way to go to secure the benefits they’re seeking. And although they might not get them at all, they’re encouraged by the conversation and hoping it gets louder.

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