Thursday April 24th, 2014

Kain Colter (2) Northwestern football players will vote on whether to form a union on April 25. (Justin K. Aller/Getty Images)

The next step of a groundbreaking movement in college sports will take place on Friday, when a group of Northwestern football players will vote on whether they want to unionize.

The vote comes nearly a month after Peter Sung Ohr, the regional director of the National Labor Relations Board in Chicago, ruled in favor of the College Athletes Players Association, the body that would represent the players in collective bargaining against the university. In his ruling on March 26, Ohr wrote that Wildcats players "fall squarely within the [National Labor Relations] Act's broad definition of 'employee' when one considers the common law definition of 'employee.'"

If the NLRB decides to review the ruling, which is likely, the results of the players' vote may remain unknown to the public for months. A majority of the 76 eligible players would have to vote in favor of unionization to organize under CAPA.

Irrespective of what the national board decides, the movement has generated a robust discussion about potential changes in college sports. The legal merits of the case, however, have not garnered as much attention. And one question that has been the subject of much speculation -- how does Northwestern's academic reputation factor into all of this? -- has rarely been properly answered.

STAPLES: Northwestern vote intriguing, but NLRB ruling far more significant

Attorney Alex Barbour seemed to echo the thoughts of many when he questioned why Northwestern was chosen as a “test case" for college athlete unionization during a February hearing in Chicago. "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's argument, in essence, is that Northwestern -- an institution that ranks 12th among national universities, per U.S. News & World Report, and has a football team that led FBS schools with a 97 percent graduation rate and 996 Academic Progress Rate (APR) score, at last accounting -- is the wrong place to argue that football players are "employees." According to labor law experts who spoke with, however, Northwestern’s academic prestige is less important than the fundamental employer-employee relationship determined to exist between the school and its scholarship football players.

In his 24-page ruling, Ohr reasoned that scholarship football players at Northwestern fit the common law definition of an employee: “a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.”

Under Ohr’s interpretation, football is the service that players provide the university. They sign a "contract" called a tender that stipulates the conditions they must abide to keep their scholarship, which is a form of "payment." And coaches exert an extensive amount of "control" over their players' lives.

“When you look at the definition of an employee and the relationships that college athletes have at the Division I level, it seems reasonably straightforward under black-and-white interpretations that college athletes under the NLRB are employees,” said Warren Zola, a professor of sports law at Boston College.

Northwestern contended in its appeal of the ruling, formally called a request for review, that Ohr disregarded and misapplied board precedent. In 2004, the board ruled that teaching assistants at Brown University were primarily students and could not collectively bargain with their university.

Northwestern football players are different, Ohr argued, because unlike teaching assistants, their service to the university is completely separate from academics. He relied on testimony given by former Northwestern quarterback Kain Colter, who is leading the players in their bid to unionize. Colter suggested that football is inimical to academic success.

William Gould, the NLRB chairman from 1994-98 and a professor of labor and discrimination law at Stanford, believes the Brown decision may eventually be overturned. He also said it does not apply to the Northwestern football union case. “I think the regional director was correct that the Brown ruling, which I think itself is flawed, was based upon the idea that the individuals, the teaching assistants -- their work was bound up with the academic mission of the university and was easily distinguishable from this case here,” Gould said. “The work is not tied up with the educational mission of the university.”

Some have speculated that Ohr’s ruling potentially holds more weight because of Northwestern's heavy emphasis on academics. If one can prove Northwestern football players are employees, wouldn’t it be easier to clear that bar at FBS schools with less rigorous academic standards? But then again, that line of thinking may be flawed.

An FBS school’s academic standards are ancillary to whether its football players meet the definition of an employee under common law, said legal expert Michael McCann. “I don’t think it’s a pivotal point,” McCann said. “I think you can argue any college is going to have rigorous academic standards. Even if they’re not actively enforced. Every private university is going to get very defensive -- or any university -- about its academic quality. They’re all going to say, ‘Well, yeah, we have these requirements and in order to be certified with the various certifying associations, we have to meet these.’ ... I think that issue will filter out, because schools would make the case that they, too, are academically rigorous.”

Added Zev Eigen, an assistant professor of law at Northwestern: “In terms of the law, [a school's academic reputation] shouldn’t matter. ... If you talk to people who really understand the law in this area -- if I were ruling on this case, I would say, ‘That doesn’t matter.’” MANDEL: Breaking down the Northwestern union movement's competitive impact

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