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Northwestern football players seek to unionize; what does the development mean?


Kain Colter and Wildcats players have filed to be recognized as members of a union. (Jonathan Daniel/Getty Images)

Kain Colter

Football players at Northwestern have requested representation from a labor union, Tom Farrey of ESPN's Outside the Lines reports.

Ramogi Huma, president of the National College Players Association, filed a petition on behalf of Northwestern players that would essentially recognize college athletes as employees, according to the report.

The movement began when Wildcats quarterback Kain Colter reached out to Huma, a former UCLA linebacker, last year. Huma met with Northwestern players -- an undisclosed number of whom had signed union cards filed with the National Labor Relations Board -- last weekend.

Northwestern athletic director Jim Phillips said in a statement that the Wildcat players are doing exactly what the university teaches.

We love and are proud of our students. Northwestern teaches them to be leaders and independent thinkers who will make a positive impact on their communities, the nation and the world. Today's action demonstrates that they are doing so.

The NCAA, meanwhile, was less welcoming of the request for union representation. NCAA Chief Legal Officer Donald Remy said the Northwestern players' efforts to unionize overshadow the academic focus of a student-athlete's college career.

This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize.

Many student athletes are provided scholarships and many other benefits for their participation. There is no employment relationship between the NCAA, its affiliated institutions or student-athletes.

Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act. We are confident the National Labor Relations Board will find in our favor, as there is no right to organize student-athletes.

So, what should we expect from this development? Campus Union caught up with legal analyst Michael McCann to break down Northwestern's attempt at unionization.

SI: Now that Northwestern players have filed a petition for union representation, what happens next?

Michael McCann: The next step is the NLRB will require that at least 26 of the 85 scholarship players on the Northwestern football team have joined this petition. In order to unionize, there must be at least 30 percent of the group that's trying to unionize. It sounds like that's not going to be an issue.

The harder step after that is for the NLRB to assess whether or not student-athletes are, in fact, eligible to unionize. That's a complicated issue. It doesn't have an easy answer. The reality is the NLRB will look at what's called the National Labor Relations Act. It's a federal law that basically determines whether a group can unionize.

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There will be legal challenges, as well, and it's worth emphasizing that this is not an overnight process. It could take months if not years to play out. But the key issues will be whether or not a student-athlete, especially a football player at a Division I school, is more like an employee than a student. Some of the aspects that will be considered will be the burdens and obligations of being a student-athlete on a D-I football team: Hours spent in team meetings, travel, revenue that's being generated, commercial obligations, etc. The entities that would be reviewing this would look at whether student-athletes are in an academic position or a commercial position.

SI: The union rep said player compensation is not an immediate goal of these efforts, but it could be down the road. Do you see the issue gradually moving in that direction?

MM: Yeah, I do. I think the most likely form of compensation would be efforts by the union to seek group licensing contracts for broadcasting rights. That's so the student-athletes that appear in games on live TV are compensated through a television contract. Now ESPN and others would say, "Wait a second, we already paid for the rights, so we're not paying some additional fee." They would object. The players are going to say, "No, you didn't contract with us, and we're a union." Whether they would boycott games or not is a separate issue. I think compensation would be an effort to seek group licensing contracts. That's the most likely form of compensation that a union would seek.

SI: Does this movement by Northwestern's players affect the ongoing lawsuit between Ed O'Bannon and the NCAA?

MM: The O'Bannon lawsuit will be resolved in one form or another before this gets resolved. Of course, the O'Bannon lawsuit could end up in the Supreme Court, so I say that with a little bit of caution. The O'Bannon case is headed for a trial in June; if there's no settlement there will be at least a trial and then a decision probably by the fall. So we'll get a resolution on that likely this year. We probably won't have a resolution on this union attempt this year. I just see this getting litigated for a long time.

The potential impact, however, is O'Bannon can now say, in essence, "Look, student-athletes who are not members of this lawsuit have sought to unionize." So this sort of strengthens his case. Athletes who are not named plaintiffs in his case are now taking on a separate endeavor that is fundamentally about the same thing: Whether or not college athletes should be compensated for their performance.

One difference is that O'Bannon is seeking money for student-athletes' image and likenesses. This unionization is really a total attempt to become employees, to negotiate labor rights. So it's different, but they're seeking the same overall goal.

SI: One issue that always comes up in these situations is the effect of Title IX. How might Title IX impact a player's efforts to unionize?

MM: Let's say football players and men's basketball players unionize, and they seek compensation for their labor. Title IX, as we know, demands gender equity in college sports. We could see Title IX lawsuits brought against unionization because of the impact it would have on women's sports. The counterargument is that women's athletes could unionize, as well, and that's true. But the reality is male athletes would likely command a lot more money as a union than female athletes would. I think Title IX is a potential issue because the unionized male athletes are going to command money that would seem to tip the balance of gender equity in favor of men.

SI: Northwestern is a private university. Would the process be any different if players at a public university sought to unionize?

MM: The National Labor Relations Act, which the Northwestern players are using, does not govern employees at public universities. Student-athletes at public universities who want to join Northwestern in the union effort would have to instead use state labor laws to unionize. This will be a problem for some. States' laws vary considerably on whether, and how easily, public employees can unionize. Twenty-four of the 50 states are considered "right-to-work" states in that their laws limit opportunities for employees of public institutions, including those employed by state universities, to unionize. Right-to-work states are typically in the south and include Alabama, Arkansas, Georgia, Mississippi, Tennessee, Texas and Virginia. Nebraska, Utah and Iowa are also right-to-work states.

This legal twist means that if college athletes want to be in a union, they need to attend schools where unions not only exist but are possible under the law. In theory, this dynamic could disadvantage public universities in right-to-work states while recruiting high school athletes: If those athletes want to be in a college sports union, they may not be able to do so at public universities in right-to-work states.

SI: Should we expect more players and programs to attempt to unionize now that the barrier has been broken?