Brother Herky
By Nate Willems

Earlier this year, the Chicago Regional Director of the National Labor Relations Board (NLRB) ruled that scholarship football players at Northwestern University have the right to form a labor union and bargain with their employer pursuant to the National Labor Relations Act (NLRA). A hearing developed an extensive factual record as to the realities of life at a major college football program. Applying these facts to the NLRA, the regional director found that football players are employees with labor rights under the law.

Though appeals may last for years in the Northwestern case, one of the first questions that came to my mind is “what would be the outcome if this happened at Iowa?” Northwestern is a private university and, as such, the NLRA– federal law– governs. At the University of Iowa, the controlling law would be Iowa’s Public Employment Relations Act, or Chapter 20. Though Chapter 20 is largely modeled on the NLRA, there are some key differences. So, assuming the realities of the life of a scholarship football player at Northwestern are relatively similar to a player at Iowa, what is the best guess as to how the Iowa Public Employment Relations Board (PERB) and Iowa courts would rule if Hawkeyes attempted to form a union?

The threshold question of whether football players have the right to form a union is answered in Chapter 20.4, the exclusions section. Most relevant is 20.4(4) which excludes “students working 20 hours or less.” Certainly, when making its case against labor rights, the Board or Regents would argue that the NCAA prohibits football programs from having more than twenty “countable athletic hours” during the sport season and no more than eight in the off-season. Since the average over the course of the year must be below twenty, the Regents would argue that Iowa football players have no right to organize.

Countable athletic hours, though, excludes time spent in travel, training meetings, “voluntary” weight-lifting, medical check-ins, tape review, and training table. When the NLRB regional director took testimony witnesses attested to a far greater time commitment. During August camp, players averaged 50-60 hours a week in football activities; during the season from September through November, players averaged 40-50 hours per week; from mid-January through the end of July the average was 12-25 hours per week. If PERB or a reviewing Iowa court considers all football related activities, the twenty-hour threshold will be easily surpassed.

Would PERB have to take into account the realities of time demands the NCAA ignores in calculating countable athletic hours? Good question. Consider travel time, Iowa Code 91A.13 states that travel time is not compensable when the transportation is “provided by the employer… as a convenience for the employee, and the employee is not required by the employer to use that means of transportation to the worksite.” Unless Athletic Director Gary Barta decides to allow football players to carpool to road games, Iowa law seems to say football travel time is compensable.

With regard to weight lifting, training meetings, and the rest, would that time count towards the average of twenty hours worked? We do not know for sure. However, when in doubt as to whether a person is “working,” we often look to the body of federal law, which is binding on the University of Iowa in this instance, developed around the Fair Labor Standards Act (FLSA)- the law that says you must get paid at least the minimum wage and time and a half after forty hours. The FLSA states that when an employer “suffers or permits” an employee to work, they are working. As the U.S. Department of Labor says, “work not requested but suffered or permitted to be performed is work time that must be paid for… for example, an employee may voluntarily continue to work at the end of the shift… the reason is immaterial. The hours… are compensable.”

If players are allowed to lift weights or participate in team meetings, this is time worked. Using the text of Chapter 20, the facts of Northwestern football, and the principles of Iowa and federal law regarding time worked, it becomes apparent that Iowa football players probably exceed an average of twenty hours worked and do have the right to form and join a union. NCAA policies do not trump state or federal law. More likely than not, our Hawkeyes have the right to become our union brothers.

~ Nate Willems is an attorney who lives in Mount Vernon.

Reprinted with permission from the Summer 2014 issue of The Prairie Progressive, Iowa’s oldest progressive newsletter, available only in hard copy for $12/yr.!!  Send check to PP, Box 1945, Iowa City 52244.