The trouble with football,” University of Chicago President Robert Maynard Hutchins wrote in December 1938, “is the money that is in it, and every code of amateurism ever written has failed for this reason.” Athleticism, Hutchins argued, was “carried on for the monetary profit of the colleges and the entertainment of the public,” contributed nothing to the “development of the mind,” and deserved no place in an institution of higher learning. The following year, Hutchins withdrew Chicago from the Big Ten Conference, and he soon thereafter disbanded the school’s storied football program altogether.
Hutchins’s critique was probably rooted more in an elitist hostility towards mass culture than a concern about the fairness of such a profitable enterprise resting on the unpaid and unprotected backs of “amateurs.” But he wasn’t entirely silent about the latter. Hutchins lamented the lasting physical toll the sport took on individuals well after their playing days were over. Nearly one in five football players suffered “serious injuries” during their short careers, he noted — lifelong conditions that entitled them to no compensation.
“The cheers that rock the stadium,” he poignantly observed, “have a rapid depreciation rate.”
One wonders, given the organizing and militant workplace action taking place at that time, why Hutchins didn’t consider the most democratic way to respond to the ills corporatization had already wrought on college football: the players, who do all the work, forming a union.
Last month, football players at Northwestern University became the first group of intercollegiate athletes ever to try just that, as an “overwhelming majority” of the team signed and filed a petition with the National Labor Relations Board seeking collective bargaining rights and union recognition from the university.
Affiliated with the nascent College Athletes Players Association (CAPA), and supported materially by the United Steelworkers of America, the organizers have cited the extensive and highly regimented hours they are required to devote to the sport, the tenuous, year-to-year nature of their scholarships, and the long-term medical repercussions that often accompany their participation — not to mention the tremendous profits their labor generates — as the key issues animating the campaign.
Of course, the ultimate target here is not Northwestern but the NCAA, the multi-billion dollar organization that superintends every aspect of intercollegiate athletics. And to the NCAA, whose existence depends on a steady stream of unpaid, “amateur” labor, the stakes are about as high as they get. Their ability to get intercollegiate athletes to work while avoiding all the responsibilities associated with formally employing them — a relationship on the rise throughout the global economy, from subcontracted janitors cleaning New York City office towers to Bangladeshi garment workers producing clothing for Walmart — is, for the first time, being directly challenged.
It was to evade this thorny issue, as historian Taylor Branch has demonstrated, that former NCAA Executive Director Walter Byers, in his own words, “crafted the term student-athlete” in the early 1950s. The family of a college football player in Colorado, killed as a result of a head injury sustained on the field, filed a suit charging that the university was obligated by the state’s workers’ compensation law to provide death benefits. The Colorado Supreme Court disagreed, ruling against the family on the grounds that football was not the university’s primary business, but Byers and the NCAA recognized the potential liabilities an alternative legal interpretation could inflict.
So began the NCAA’s long campaign to classify intercollegiate athletes as outside the purview of federal and state labor law, as students who, according to this binary logic, were thus not workers. Hardly a reflection of the lived experience of a college football player, the student-athlete has since its inception been nothing more than a legal stratagem designed to shield the NCAA from employer-related risks and, even more importantly, to ensure its uninterrupted access to cheap labor. The technical issue on which the case will be decided is whether college football players are in fact employees or are simply students who happen to participate in a most demanding and immensely profitable extra-curricular activity.
This legal matter is not new to campus labor relations. University administrators have long relied on the principle to argue that graduate teaching assistants, for instance, are students rather than employees and are therefore not covered by labor laws protecting the right to unionize and bargain collectively. Hospitals have made the same case when confronted with organizing campaigns from medical residents, asserting that the latter’s eighty-hour work weeks and frequent night shifts are but a rigorous educational exercise.
The NLRB, which recently began hearing the Northwestern case, has had a scattered history on the question since the 1970s, ruling in favor of employers when dominated by Republican appointees and holding for the “student-workers” when Democrats occupy the White House. At the moment, Board precedents, which apply only to private institutions (something CAPA’s legal strategy will have to confront if they intend to organize at public institutions), stipulate that medical residents are employees, while graduate teaching assistants — impressive recent victory at New York University notwithstanding — are not. Suffice it to say, therefore, that interest in the Northwestern case will extend far beyond the athletic department.
In fact, hardly confined to universities and hospitals, the basic issues and assumptions involved in the student-employee distinction bear on all of American labor law, and a closer look at them sheds a bit of light onto why building a broad, inclusive workers’ movement has proved so difficult in the United States.
In his instructive new book, The Employee: A Political History, Jean-Christian Vinel has shown that, since the nineteenth century, the definition of employee has been a contested issue on the factory floor, in the courts, and in Congress, with employers and elites long seeking to narrow its legal scope and thus limit the opportunities for the politicization of the workplace. By formally classifying people who work for them, in one way or another, as something other than an employee, employers understood, they could avoid a lot of hassle — like abiding by labor laws.
Indeed, this principle of exclusion was built into the Wagner Act of 1935, which, in addition to codifying the right to organize and establishing the modern system of labor relations, explicitly left agricultural and domestic workers (who happened to be disproportionately African American) outside of its sphere of influence. Moreover, as Vinel notes, in response to a wave of unionization drives by “foremen” from across the manufacturing sector — at its height in the mid-1940s involving more than 120,000 members affiliated with the Foreman’s Association of America and the United Clerical Technical and Supervisory Employees — corporate employers and their allies in the Republican Party and the segregationist South mobilized to exclude “supervisors” from federal labor protections.
In what would prove a debilitating blow to the prospects for white-collar unionism in the US, their efforts were realized in the 1947 Taft-Hartley Act, which President Truman famously condemned as a “slave-labor bill” as he issued his soon-to-be-overridden veto of the legislation.
Strange has been the career of the employee exclusion, moving from supervisors to students to sweatshops, but throughout there has been a certain consistency to its logic. By forcing employees to prove that they are indeed employees before they can exercise their federally sanctioned workplace rights, the employee exclusion has not only made it far more difficult for a given group of workers — whether college football players or Walmart truck drivers — to organize.
What’s more, as Vinel put it, the successful legal and ideological move of exclusion has in and of itself stymied the emergence in this country of an alternative “common sense of the social meaning of unionism,” one holding that the rights to organize and bargain collectively ought to be fundamental and afforded to everyone in a democratic polity. Limiting who enjoys the legal right to unionize correspondingly limited the appeal of unionism; the legal barriers erected to confine unionization to blue-collar workers appear to have had their intended ideological effect.
The unionization campaign at Northwestern is no doubt exciting. That any group of people in their late teens and early twenties, football players or otherwise, thought to address their workplace grievances through organizing is, in this rabidly anti-union place and time, nothing short of remarkable. If they succeed (which is still far from certain), their victory could reverberate across the intercollegiate athletic world, transforming the NCAA in the process. And, not inconsequentially, they could pave the road for organizing advances by graduate students, medical residents, and many others who work for the same institution that bestows their degrees or credentials.
At the same time, the Northwestern case offers an opportunity to reflect on just how unfavorable the terrain is for workplace organizing in the twenty-first century United States. Even these encouraging developments occur within a reactionary legal context that has for decades been designed to exclude vast numbers of workers from protection under labor law. When it’s a real victory just to be called a worker, we have quite a ways to go.
That said, in spite of the obstacles they face and the limitations of their legal strategy, struggles like this one which bring the question of what it means to be a worker to the fore are opportunities to offer a more expansive definition of a working class, and to begin to imagine what a robust working-class movement might look like today.
So when the NCAA, in language ironically reminiscent of Robert Maynard Hutchins, valorizes their mythical student-athlete, we should respond by calling them what they really are: workers. And, hopefully, maybe even union workers.