There is much talk around players’ unions in professional sports. It is important for employees (players) and employers (leagues and teams) to understand the role of a union and the applicable collective bargaining agreement (CBA). We’ll do this Q & A style…
#1: How are Unions funded?
Employers do not fund the union; rather, they are usually funded through dues that are taken out of a player’s paycheck. While there are exceptions, usually the Union represents every employee. Some Unions have “Union-Security” agreements that require all employees to be a union member. Players should consult their Unions, as there are situations and processes where a Player can opt-out. Check this out for more information.
Football Expert Take
In Europe, players sign up yearly to join the Union. The Players pay one lump sum. The women’s uptake to the unions have been more complicated and take longer as most leagues are only recently recognized as professional means the union's representation can look different from country to country. They regularly travel around to the clubs to explain their role and how they can be of assistance to the players.
There is even a global player’s union called FIFPro which represents every player around the world for no cost. If a player has a problem with their club, federation, or organization, they can reach out to FIFPro. FIFPro has been instrumental in the current World Cup as it relates to securing the women's section of the federations receiving more budget from FIFA for travel and accommodations and protecting players for when they have to report to duty once the season finished. They have also helped create standards for parental leave that have shaped the current CBA’s of many countries.
#2: What is the Union’s Duty?
The Union has a duty to represent each union member (player). The Union breaches this duty when its conduct is: (1) arbitrary, (2) discriminatory or (3) in bad faith. Let’s break this down:
- Arbitrary. Union conduct is deemed arbitrary when it is “without rational basis or explanation.” What does this look like?
- PUNCH IN THE FACE
Let’s say a player is disciplined for punching a fan in the face in the parking lot of a game. This player is disciplined. The Player files a grievance against the league, and the grievance is denied by the league. The league forwards the denial to the Union President. The Union receives the denial but does not inform the Player. Months pass by, and the Player wonders what happened with their grievance. The Player reaches out to the Union President, who searches through their e-mail and who finds the denial. The problem is, the CBA says that a Player can appeal a grievance denial within 14 days of the denial. The League thinks the Player is not challenging the denial, while the Player is unaware of the status. There is no bad faith, it is just that the Union President is overwhelmed and missed the e-mail. It just slipped through the cracks.
A Union that just goes through the motions, or acting in a perfunctory manner, can be seen as arbitrary. The Player pays dues for a union to review their grievances. (NOTE: Not all grievance denials are required to be pursued by the Union. Players should consult with their Union to learn more about the process.)
- Discriminatory. Unions cannot represent players in a discriminatory fashion. What does this look like?
- RESPECT YOUR ELDERS
Let’s say there seems to be a pattern with how a Union is processing grievances. All the young players’ grievances are not being appealed to arbitration. The Union takes the attitude that the older players have paid their literal and metaphorical dues. The Union developed a track record of discriminating against the younger players, by not advocating for their rights under the CBA.
This is considered discriminatory and a breach of the duty to represent the player. Again, the Player pays dues for a reason.
- Bad Faith. This is more clear. When a Union acts with the intent not to represent a member or members, this is bad faith.
- COLLECT THE DUES
Let’s say a Union collects dues and hoards the cash. This is evidence of bad faith.
Employers and Players must be aware that the threshold to prove bad faith by a Union is high. Courts have been honest stating that these causes of action are “rarely sustained.” Employers must also be aware that it is not their duty to ensure the Union follows the CBA.
Football Expert’s Take:
Each club usually has a representative for the union in the locker room. One or possibly two players are designated to represent this club in discussions or when certain problems arise (“Representative”). The Representative shares new information, pamphlets or invites the players to meetings that have been relayed to the player by the Union. These player’s usually regularly meet with the union and explain the grievances of their teammates and or the communal problems at the club or league.
The Unions usually meet at least yearly and sometimes more with each club to explain to players current regulations, trends and overall what is happening that season. Among other things, they (1) offer educational courses, (2)post career opportunities, (3) conduct sessions on the deductions included on player’s payslips,, (4) how explain how retirement works in that specific country, and (5) explaining to foreign players how to recuperate the money paid to social security. The Unions are here to represent the player’s in various matters and are not only to be a regulatory body for the players to “tattle” on the employer. The role of the player as an employee can be a complicated one. As a regular employee you cannot usually be easily replaced however in sport if you are not performing there are other player’s on the team that could replace you on the pitch or even outside player’s that could take your place on the roster. This can create a unique relationship with the employer. The Union has a duty to the player to also provide advice and mental health guidance that player’s may fear to flag to the employer as their role is very precarious.
#3: Can a Union be Liable for Discrimination?
As mentioned above, Union’s can be liable for discrimination. It is a common misconception that Union’s cannot be held liable for discrimination. After all, they are supposed to protect the employee. However, we have seen that Unions can morph into a “bad employer” themselves. Unions can pick up bad habits that are not in the best interest of their members. State and federal statutes safeguard against this discrimination. We’ll just focus on the federal statutes:
- Title VII, the law that prohibits discrimination based on race, gender, religion, national origin and genetic information specifies that it is unlawful for a union, among other things, to:
- Exclude or expel individuals (players) from membership or otherwise discriminate against any individual (player) because of their race, color, religion, sex, or national origin.
- To cause or attempt to cause an employer to discriminate against an individual because of their race, color, religion, sex, or national origin.
- The Americans with Disabilities Act (ADA) also prohibits labor organizations (unions) from discriminating against members based on disability.
This information can be helpful for Employers to understand. When faced with a Union Campaign or a Decertification Election, Employers can lawfully respond to these events. Examples of where a Union fails the employee are helpful during these times.
Football Expert’s Take:
As the professionalization of women’s football evolves and develops so does the role of the union and the player’s knowledge of the union. Many players are unaware of the union or how they can benefit from them let alone that they can challenge them if they feel the need. Like many things in the women’s game more education and visibility are need around the topics so that player’s are well informed and can make their own decisions.
#4: What if a Player is Not Happy with the Union - Can They Lawyer Up?
This is a tricky one. The Answer is yes and no. When a Player agrees to be a part of the Union, this usually means that the Union is the exclusive bargaining agent of the Player. In other words, the Union will represent the Player in all proceedings under the CBA. Let’s say it becomes clear that the Union is not doing its job. What can the player do?
- Option 1: File a Unfair Labor Practice (ULP) against the Union. This is filed with the National Labor Relations Board (NLRB).
- Option 2: Retain a lawyer. There is a cause of action called a Hybrid 301 LMRA Claim. A player can file such a claim if: (1) the Union breached their duty of representation, and (2) the Employer breached the CBA. This is a tough case to demonstrate, but when the facts allow, courts will award the employee consequential damages that flow from the breach. Check out this case involving an Eagles Player suing the NFLPA.
Prudent employers will be well-versed in the CBA terms. As always, supervisory employees must be trained in the terms of the CBA, and Section 7 rights of the Players.
From the Lawyer: All employers, not just soccer clubs and leagues, must educate their supervisory employees on the obligations under the CBA. Training should be held annually – do not wait for the CBA renewal. Refresher trainings remind these employees that they are more than soccer coaches. They are supervisory employees with duties under the CBA.
From the Footballer: Now that women are getting a seat at the table they need to step up and pull out the chair to sit down. The Unions and Employers have a duty to educate the player’s but the player’s have a responsibility to start asking questions now. They can no longer hide behind a veil of naivety. The professionalization means responsibility to all player’s to make sure that a sustainable product is built and part of that has to do with embracing the fact that they are employees and what that means.
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