CHICAGO -- Kain Colter sat on the witness stand in a courtroom on the 13th floor of the Dirksen Federal Building in Chicago on Tuesday and provided a window into the life of a Northwestern football player. Colter, a former Wildcats quarterback and projected mid-round NFL prospect, was the first witness called by the College Athletes Players Association (CAPA) to give testimony on the issue of whether Northwestern football players should be deemed employees.
Colter described the long hours that football players put in working out, practicing, traveling, studying film and playing games. During training camp in the summer, Colter said, between 50-60 hours a week are devoted to football-related activities. Colter estimated that the total is 40-50 hours during the season. At one point during his testimony, Colter said that "there's no way around" the fact that football is a "job." He compared the film study that football players must do before a game to the preparation that NAVY seals do before an operation in Iraq. "I like to think of it like the military," he said. "They spend months and weeks preparing for operations. We spend months getting ready for our operations."
Colter relayed the unique challenges that Wildcats players face when scheduling classes. He said that players cannot take courses in the summer that last eight weeks, for instance, because they would conflict with the team's annual preseason training in Kenosha, Wisc. "Everything we do is scheduled around football," he said. "We're brought to the university to play football." Colter said that football prevented him from pursuing his dream of becoming an orthopedic surgeon, and spoke of the difficult tightrope that Northwestern football players must walk to balance academics and football. The large amounts of time they spend on football, Colter said, can inhibit their ability to succeed academically. Colter also said that academic advisors sometimes discouraged players from taking certain classes and that he doesn't believe he would have been accepted to Northwestern if he didn't play football.
When asked by John Adam, an attorney representing CAPA, whether Colter thinks college athletes get a free ride, he said, "I absolutely hate when people use the term free ride. We earn everything we're given through blood, sweat and tears." Colter said that Northwestern did not cover an MRI exam he needed for an ankle injury he suffered last season. Anna Wermuth, an attorney representing the school, countered that Colter was reimbursed for the surgery. "I sacrificed my body for four years, and they sold my jersey," he said. "They should protect me."
In his opening argument, Adam reiterated the point he made at a preliminary hearing last week, that Wildcats players' "first priority" is football. He also said that their roles as students and athletes are separate. "They are separate and distinct," he said. Adam said that Northwestern football players are "performing services totally unrelated to the degrees they are working toward." Adam said last week that one of the reasons that Wildcats players should be entitled to collective bargaining rights under federal labor law is the extensive control coaches exert over them. In his last two seasons at Northwestern, Colter was a member of the team's leadership council, which meets regularly with coach Pat Fitzgerald to discuss issues surrounding the program, and which has input on decisions regarding scheduling and team goals. Colter said he was pressed to join the council after his sophomore season and that Fitzgerald "makes it clear" that he's the coach. Colter said that Fitzgerald, who he called "the bossman," represents 51 percent of the vote.
Alex Barbour, another Northwestern attorney, raised several issues with CAPA's petition, including the possibility that union certification would require changes to the NCAA's governance structure, that collective bargaining for football and men's basketball players would negatively impact non-revenue sports and potential Title IX issues. He also said that Northwestern football players are "first, foremost and always students as opposed to employees," and that football is "part and parcel with the educational experience." Barbour also questioned the composition of the union, arguing that the unit petitioning for unionization is "arbitrary" because it excludes walk-ons, who do not receive scholarships.
Colter, a three-time Academic All-Big Ten honoree who said he gained no educational value playing football, was pressed about his application for an internship at Goldman-Sachs in private wealth management. A Northwestern attorney claimed that the quarterback's application made reference to skills Colter developed while playing for the Wildcats. Colter, however, said that he could have been more successful without his strenuous football schedule. "I have done pretty well, but I could have done a lot better," he said.
Attorneys from Northwestern also highlighted the school's sterling academic reputation and questioned why it was chosen as a "test case" for athletes petitioning to unionize. "Academics always trump athletics at Northwestern," Barbour said. "Frankly, Northwestern has a great deal of difficulty understanding why it was chosen as a test case. The reality is that Northwestern is not a football factory. It is first and foremost a premier academic institution. Student-athletes receive a world-class education, free tutoring services, core academic advice and personal and career development opportunity."
Barbour contended that some of CAPA's demands -- including increasing the value of scholarships to cover the cost of attendance, and allowing athletes to profit from commercial sponsorships -- are controlled by the NCAA, not Northwestern. Both sides acknowledged that the NCAA is not a "joint employer" and Colter admitted that CAPA would not be able to collectively bargain NCAA issues. But he believes the union could make progress negotiating with Northwestern. "We can make a lot of great changes," he said.
If the board were to grant Wildcats players employee status, it is Northwestern's belief that they would be considered temporary employees -- a point Adam last week said had "no merit." After the hearing was adjourned, Northwestern legal representative Steve Tilson expounded on the "temporary" designation. "They're by definition only here for a finite period of time and after their final season, like Kain Colter, they lose eligibility at that point and don't have the same interests as other football players." On Tuesday, Adam called the issues Barbour raised "secondary" and also said there would be no issues if the NLRB regional director decides the scope of the petition must be expanded to include walk-ons. "If we establish football players are employees, we'll be on solid ground," Adam said.
A Northwestern spokesman, Bob Rowley, issued the following statement after the hearing:
"What we heard today is the life of a student-athlete at Northwestern is extremely demanding, but also that the academic side and the athletic side are inextricably linked and Northwestern university provides a range of services to help our student-athletes with their studies. We want to emphasize once again, we agree that students should have a voice in issues that impact their lives as athletes. However, we believe that a collective bargaining process at Northwestern would not advance the discussion of many of the issues involved here, in large part because most of the issues being raised by the players are outside the purview of Northwestern University. We're pleased to note that the testimony you heard today and the view of Northwestern students involved in this effort have emphasized that they are not unhappy with the university or with the football program or their treatment by Northwestern, but are raising the concerns because of the importance of these issues nationally. Northwestern believes our student-athletes are not employees but students, first and foremost, and that a collective bargaining process is not the appropriate method to address the concerns they are raising."
Tuesday's meeting was the first of several days of testimony. The two sides will meet again on Wednesday morning and deliberations are expected to continue through Friday. A Northwestern official said that Associate Athletic Director for Compliance Brian Baptiste and Deputy Director of Athletics Janna Blais will testify later this week on behalf of Northwestern. The NLRB's decision is expected to be appealed to the national board in Washington and possibly up to the Supreme Court. Other private universities will keep close watch on what the board ultimately decides, as it has the potential to alter athletes' relationships with their universities. The decision will not affect public schools because their collective bargaining rights do not fall under the NLRA.