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Northwestern players win ruling at NLRB, take next step toward unionization

Former Northwestern QB Kain Colter (right) led the effort of Wildcats players to form a union. (AP Photo/Paul Beaty)

Former Northwestern QB Kain Colter (right) led the effort to form a union. (AP Photo/Paul Beaty)

In what could be a potentially landmark moment for collegiate athletics, the National Labor Relations Board ruled in favor of the Northwestern football players who are attempting to form a union on Wednesday. In its ruling, the NLRB said that the players had the right to form the first labor union in the history of college sports.

Former Wildcats quarterback Kain Colter had previously testified that "there's no way around" the fact that football is a "job." The movement to unionize started when Colter reached out to former UCLA linebacker and National College Players Association president Ramogi Huma. Colter and other Northwestern players filled out union cards and filed them with the NLRB.

From the Chicago Tribune in January:

The organization also wants players to receive “cost of attendance” stipends — most major-conference schools agree — and allow them to be compensated for commercial sponsorships “consistent with evolving NCAA regulations.”

There is no push for “pay-for-play” salaries, though.

“A lot of people will think this is all about money; it’s not,” Colter told the Tribune on Tuesday morning. “We’re asking for a seat at the table to get our voice heard.”

There are multiple ways this ruling could go from here. And it's far from over at this point. From here, the case moves to D.C. There will be a formal appeal process. caught up with SI's legal analyst, Michael McCann, for his take on Wednesday's decision regarding Northwestern.

SI: Northwestern football players appear to have won a decisive victory on Wednesday in their efforts to form a union. What does this mean right now?

Michael McCann: One of the things that isn’t clarified yet is what the NLRB considers a “bargaining unit.” That’s a big part of it. If it’s Kain Colter and other football players serving as the bargaining unit that can now negotiate with Northwestern, that’s a big victory for Colter. Now he would clearly have the requisite percentage of football players (at least 30 percent) to negotiate and begin bargaining.

If the NLRB says it’s all athletes at Northwestern, then we don’t know yet if the other athletes at Northwestern would want to be part of this. I’m sure that will be clarified in the near future, but that’s a key piece of information.

SI: The consensus seemed to be that Northwestern players weren’t likely to win this fight for unionization. How significant was this decision?

MM: The general consensus among experts was that the players would lose. This was a big victory for college athletes in general, and for the overall goal of creating more equity in terms of finances in college sports.

One of the points that’s been raised is that the NLRB didn’t have to look at precedent. It doesn’t have to say, “We held that NYU graduate students aren’t members of a union, therefore we have to follow that.” In all likelihood the NLRB looked at this issue and didn’t turn to precedent. Instead they viewed it as a novel issue that they looked at and clearly concluded that Kain Colter, and at the least Northwestern football players, are employees.

SI: What arguments do you think won the case for Colter and Northwestern?

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MM: I think one key argument was the number of hours per week playing sports. That had to have been a major factor, the idea that, even though NCAA rules limit athletic activities to 20 hours per week during the season and eight hours during the offseason, Colter testified under oath that he spent 40-50 hours a week during the season on football. To me, that’s a very crucial piece of information, because that’s much more in line with an employee than a student, especially given that there are school rules regarding the number of hours a full-time student can work. That positioned Colter to say, “I really am working in a job. I’m just not getting paid for it.”

The NLRB also likely took into consideration that, as employees, Colter and his teammates will now have more equity in discussions about fairness in college athletes. Also, nothing in the National Labor Relations Act excludes student-athletes from being members of a union, whereas the act excludes some types of workers, including independent contractors and agricultural workers. The absence of student-athletes being explicitly excluded from the act might have favored the student-athletes.

I also think the role of coaches played a factor and whether they are members of the university’s faculty or not. The athletic department at Northwestern and any other big-time program is really detached from the rest of the school. That probably played a pretty important factor in terms of Colter winning. I don’t think Northwestern coaches are members of the faculty. I could be mistaken, but I don’t think they are. That likely played a factor in the decision.

Also, the budget: Where is the money coming from? With the athletic department, a lot of it is coming from TV contracts, selling apparel and other related activites that are very commercialized and distinct from the traditional university model for raising money.

SI: We’ve talked before about Title IX implications. What happens if the bargaining unit is ruled to be just football players, who are male athletes?

MM: That’s a great question. If it’s only football players, and those players negotiate contracts in which they’re paid something, then there will be female athletes and attorneys undoubtedly arguing that this is a violation of Title IX. Even though Northwestern is complying with one area of law -- labor law -- it would be in violation of another area of law: Title IX. There would likely be a Title IX challenge forthcoming. The size of the bargaining unit could play a big role here. If it doesn’t include female athletes, a Title IX challenge will likely occur pretty soon.

SI: How does this ruling affect public versus private universities?

MM: Technically this decision only affects Northwestern. But now there’s precedent that these players and their argument empowers them to enter into collective bargaining as a unit. Student-athletes at other private universities could rely on this as precedent, and in all likelihood the NLRB would affirm them, as well. But they’d still have to take the formal step of seeking recognition. If students at those schools wanted to unionize their football players, they could rely on this ruling.

However, this ruling does not empower players at public universities. Football players at Alabama could not use this at precedent. They’re going to have to rely on state labor law, and we know 24 states are right-to-work states that either prohibit or greatly limit opportunities of state employees, like those at public universities, to collectively bargain. Now, if players at Northwestern are paid, that’s a pretty big recruiting advantage over a player at the University of Alabama that won’t be able to be in a union.

SI: What is the next step for Colter and Northwestern’s players?

MM: Once we know what the bargaining unit is, the NLRB then has to confirm that Kain Colter has at least 30 percent of their bargaining unit supports entering into bargaining. Then the union would notify Northwestern that it would like to enter into negotiations over the contracts of these students-athletes, because they are employees. And this is an understated point: These players are not only going to be owed salary. They’re going to be owed health benefits, and potentially pension or retirement. They may be entitled to other forms of disability insurance or worker’s compensation. It could become a very expensive proposition for Northwestern. I’m sure Northwestern will continue to have football, but some schools may have to really rethink how much money it costs to have big-time sports.

Today's decision by regional director Pete Sung Ohr will almost certainly be appealed by Northwestern. Any decision by a regional director can be appealed to the NLRB in D.C. Given the novelty of this issue, and given the stakes, an appeal is virtually certain. Even if an appeal fails and the NLRB agrees with Sung Ohr, Northwestern can file a lawsuit and hope to get a federal court of appeals to overrule the NLRB. But in order to appeal to a court, Northwestern will have to refuse to bargain with its own students, which could be awkward.

Of course, it is important to note that the NLRB has been known to reverse itself on whether certain types of workers can unionize, especially after a new president appoints NLRB board members of different ideologies. For instance, it reversed itself on whether graduate students can unionize. This means it is possible that a future composition of NLRB board members may view student-athletes differently and reverse course. With that in mind, expect student-athletes at other schools to quickly seek unionization before there is a risk of a new policy.

*Update: The NCAA released an official statement late Wednesday afternoon:

“While not a party to the proceeding, the NCAA is disappointed that the NLRB Region 13 determined the Northwestern football team may vote to be considered university employees. We strongly disagree with the notion that student-athletes are employees. Over the last three years, our member colleges and universities have worked to re-evaluate the current rules. While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college. We want student athletes – 99 percent of whom will never make it to the professional leagues – focused on what matters most – finding success in the classroom, on the field and in life.”

We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid.