Football Close Up on Field

On Saturday, November 7, 2015, several African American members of The University of Missouri’s varsity football team announced their intention to go on strike—refusing to attend practices, play in scheduled games or participate in football-related activities until the school’s President, Tim Wolfe, resigned or was removed from office. The strike was prompted by several controversial racial incidents that occurred on the college’s campus but were not adequately addressed by school administration. Announcing their intent to strike via social media, the student athletes tweeted:

The athletes of color on the University of Missouri football team truly believe Injustice Anywhere is a threat to Justice Everywhere. We will no longer participate in any football related activities until President Tim Wolfe resigns or is removed due to his negligence toward marginalized students’ experiences. WE ARE UNITED!!!!!

Head coach Gary Pinkel expressed solidarity with his players and publicly supported their activism and “right to strike.” A strike, by definition, is a concerted work stoppage. The football team’s threatened strike, especially failure to play a scheduled game, would have cost the University millions of dollars as its football program brought in $31.9 million dollars in revenue in 2013 alone. The economic realities of the football team’s pending strike garnered a swift response from the school’s administration and on Monday, November 9, 2015—just two days after the student-athletes went on strike—President Wolfe resigned.

The acute effectiveness of the football team’s strike may be a catalyst for changing the very dynamics of college sports—but did Missouri’s football players have the “right” to strike?

Under Section 7 of the National Labor Relations Act (“NLRA” or “Act”), employees have the right to engage in protected concerted activities, including the right to strike—although the exercise of this right is not unlimited. However, the employment status of student athletes has yet to be definitively decided by the National Labor Relations Board (“NLRB” or “Board”). In a decision earlier this year, the NLRB punted the question of whether the players are “employees” within the meaning of Section 2(3) of the NLRA.

Even if student athletes are considered “employees” under the NLRA, there is no unfettered right to strike. Employees who strike for a lawful object fall into two classes: (1) economic strikers; and (2) unfair labor practice strikers. Both classes of strikers continue as employees, but employees engaged in an unfair labor practice strike have greater rights of reinstatement to their jobs.

Economic Strike: The purpose of an economic strike is to obtain some economic concession from an employer—such as higher wages, shorter hours, or better working conditions. Economic strikers retain their status as employees and cannot be discharged while on strike, but these employees can be replaced. Moreover, if an employer has hired a bona fide permanent replacement that fills the vacant job of an economic striker, those replaced economic strikers are not necessarily entitled to reinstatement.

Unfair Labor Practice Strike: Employees who strike in protest of an unfair labor practice allegedly committed by their employer are called unfair labor practice strikers and are afforded greater job security than economic strikers. Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers (absent serious misconduct on their part) are entitled to reinstatement, even if that means that the employer must discharge the employees hired to replace the strikers.

The Missouri athletes strike does not fall squarely into either an economic strike or an unfair labor practice strike. However, the reasons that prompted the strike—i.e., the racially charged atmosphere on campus and dissatisfaction with the administration’s responses to student complaints of racism and intolerance—seems most akin to an economic strike for better working conditions, namely, a strike seeking to improve the campus environment in which the student-athletes live and “work.” If the players had in fact gone on strike, as economic strikers, the University could have held open tryouts to permanently replace the economic strikers; making the strike a risky gamble for several of the players.

While the lawfulness of a threat to strike by student athletes will likely be the subject of many talk radio debates in the months to come, universities should thoroughly review this play and prepare themselves for similar “Hail Marys” as the efforts to unionize student athletes continues. The threatened strike of the University of Missouri football team is an example of the economic power student athletes wield. Lead by thirty-two players, the Missouri football team strike—which, if carried out, could have jeopardized the team’s 2015 season and revenue—received nationwide media attention and effectuated almost immediate change. The prompt response to the Missouri football strike has added a powerful tool to the labor movement in college sports and colleges and universities who rely heavily on the revenue generated by NCAA sports should be prepared to see concerted activity related to Section 7 from student-athletes at other NCAA member institutions.