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Northwestern, CAPA make final arguments at NLRB hearing

Photo: M. Spencer Green/AP

Kain Colter and Ramogi Huma now await the NLRB hearing officer's decision in their union case.

CHICAGO -- Ramogi Huma and Tim Waters stood in the lobby of the Dirksen Federal building last Friday and fielded questions from reporters. Huma, the president of the College Athletes Players Association (CAPA), and Waters, the political director of the United Steelworkers, a union affiliated with the CAPA, were discussing their position in the ongoing National Labor Relations Board hearing concerning whether Northwestern football players qualify as employees under federal law.

The previous day, Joyce Hofstra, the NLRB hearing officer, had called the CAPA's case "weak." Attorneys representing the CAPA hadn't seemed to have offered adequate evidence for the existence of an employee-employer relationship. But last Friday, nearly three hours of testimony from Wildcats coach Pat Fitzgerald helped solidify several key points that CAPA had sought to make throughout the week.

"We are satisfied," Huma said. "If the hearing were to have ended today, we'd be fine. We've made all the points that we needed to make."

On Tuesday, Northwestern called three more witnesses to the stand. All three were former Wildcats football players -- offensive linemen Patrick Ward and Doug Bartels as well as long snapper John Henry Pace -- all of whom had excelled academically during their playing careers.

Last week, former Northwestern quarterback Kain Colter, who is leading the movement to gain collective bargaining rights under the CAPA, said that he had been unable to follow through on his dream of becoming an orthopedic surgeon because the time demands of football didn't allow him to pursue Northwestern's rigorous pre-med track.

JOHNSON: Northwestern's Colter makes his case for college football union

Contradicting Colter's testimony, Ward, a three-year starter, said that football did not prevent him from succeeding academically. He claimed his academic advisors didn't steer him into certain classes and that he was able to complete a demanding mechanical engineering degree with a 3.94 GPA because he learned to manage his time efficiently.

"I was never in a position where I had to choose between one or the other," Ward said of football and academics. "I thought they went hand-in-hand."

Tuesday was the final day of testimony at the hearing. The next step will be a decision from the regional director of the NLRB, which will likely be appealed to the federal board in Washington D.C. Because the NLRB governs only the rights of private sector employees, its decision will only apply to private universities. Athletes at public universities that want to unionize will need to go through their state's labor board.

Over five days of testimony, attorneys representing the CAPA have used the following five points to outline their argument that Northwestern football players should be considered employes: Football players at Northwestern are compensated for a service (i.e. football) with athletics-based grants-in-aid, or scholarships; they have supervisors (i.e. coaches) who control their schedules and monitor what they say on social media; they must abide by certain rules and regulations, and are held to different standards than other students; they can have their compensation taken away (i.e. have their scholarship revoked) for violating those rules and lose their jobs (i.e. their spots in the lineup) if they skip practices or games; and they have a contract (i.e. an athletic tender agreement) that stipulates what they must do to maintain their scholarship.

While much of the attention in this case has been on the specifics of how Northwestern treats its football players, that's not what the NLRB panel will focus on when making its decision. The board will focus on whether the facts submitted into the record through testimony provide sufficient proof that Wildcats football players are university employees. Whether Northwestern actually treats its football players like employees is beside the point. At issue is whether Northwestern can treat them like employees.

"This is not an attack on Northwestern -- absolutely not," Huma said.

Wildcats players are not complaining about their experience at the school. They made that clear in a statement released to the Chicago Tribune last week by Northwestern center Brandon Vitabile, which read in part, "[The school has] always acted with our best interests in mind. We firmly believe that Northwestern University is one of the best places in the country to earn an education and compete as an elite athlete.".

Through collective bargaining, the CAPA is looking to change some of the rules that allow what they believe is an employee-employer relationship between Wildcats players and their university to exist. It seeks to negotiate into place certain measures within the construct of NCAA rules that Northwestern is currently not obligated to provide. Among the reforms the CAPA is pushing for are guaranteed coverage for injuries incurred during sanctioned competition, the establishment of a trust fund to help former players continue their education, reduced contact in practice and placing independent concussion experts on the sidelines during games.

"Most of the objectives CAPA is trying to achieve are not even controlled by Northwestern," one school attorney said last week.

"We understand [Northwestern's] practices," Huma said. "But in terms of guarantees, the policies that we've been discussing the last few days -- they're short on guarantees, although the players are treated pretty well."

To dispute the CAPA's main argument, Northwestern attorneys have cited a 2004 NLRB case in which teaching assistants at Brown were ruled to not be employees on the grounds that they were primarily students. Northwestern attorneys have tried to demonstrate through testimony that football is not a job, arguing that football is part of the educational experience and that academics come before athletics. When Fitzgerald was asked to describe his basic duties as head coach, for example, he stressed the importance of academics. "We want to graduate 100 percent of our players and prepare them for life," he said.

JOHNSON: Northwestern coach Fitzgerald testifies at NLRB hearing

Northwestern attorneys have also said that the university will not be able to accommodate much of what the CAPA is seeking to accomplish. Lawyers representing the CAPA and Colter have contended that the union -- even if lacking the power to collectively bargain directly with the NCAA -- would be able to make progress negotiating with Northwestern.

"We can make a lot of great changes," Colter said last week. The CAPA, if certified, would seem to have the authority to negotiate into place at least one of its key proposed reforms: improved medical care.

Northwestern attorneys have also called into question the composition of the union, charging that the 85 scholarship players on the team represent an "arbitrary" unit. They cited walk-ons, who are not entitled to scholarship benefits, as well as seniors who have exhausted their eligibility but remain on scholarship.

The CAPA attorneys have countered that they would be willing to expand the scope of their petition to include walk-ons if scholarship players are deemed employees. But those particulars are less important than the main question.

"The real issue is going to be the employee status of the football players," an attorney representing the CAPA said last week.

A decision is expected within four to six weeks.

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