Hearings begin as Northwestern football attempts to unionize

Kain Colter (center) won't play for Northwestern next year, but has actively pushed for unionization.
Paul Beaty/AP/SI

CHICAGO -- Two weeks ago, Ramogi Huma, the president of the National College Players Association, filed a petition at the Chicago regional office of the National Labor Relations Board on behalf of Northwestern football players seeking to form a union. The next step in that process played out Wednesday, when attorneys representing the College Athletes Players Association (CAPA) and Northwestern spoke at a hearing held at the famous Rookery Building in Chicago.

Both sides presented their case and will reconvene for a second hearing on February 18, when Northwestern quarterback Kain Colter, who is leading the players' movement to gain collective bargaining rights under CAPA, will give testimony. It is not clear if other players will be called as witnesses.

"Anyone that knows what these people do, what these athletes do, they are in essence professional athletes," said John Adam, an attorney representing CAPA.

The NLRB will need to determine whether the athletes should be considered employees of their university. There is no clear precedent for this case, because it marks the first time college athletes have attempted to unionize. In 2000, the NLRB ruled that graduate teaching and research assistants at New York University affiliated with the United Auto Workers could unionize and collectively bargain. Four years later, the board overturned that decision when it determined that TAs at Brown University were not employees. The graduate assistants group agreed to withdraw a case it had before the NLRB as part of a settlement reached with NYU in November 2013, more than a year after the board announced it would review the Brown decision.

The graduate assistants' attempt to unionize hinged on whether their connection to NYU was predominantly educational. Likewise, lawyers representing CAPA will need to prove that Division I football players' on- and off-field responsibilities are separate from their academic work. They will also argue that school officials exert extensive control over the football players -- when and how long they practice, have meetings, etc. -- and that they are compensated for a service they provide the university.

That compensation, CAPA's lawyers assert, comes in the form of athletics-based grants-in-aid that would not be available to football players without their participation. Adam said that, because these facts are "undisputed," he believes Division I football players should be entitled to the rights of employees under federal labor law.

"For too many years college athletes have been exploited and have been denied rights as employees," Adam said. "And we believe this is the beginning of the end of that exploitation, and that through these NLRB proceedings, we will establish under labor law that they are employees.

"They do the same thing that the NFL players do, they do the same thing that the NBA players do. They are dedicated athletes performing services for the university that bring in huge amounts of revenue, billions of dollars in revenue. And they are being told, 'No, you're not an employee -- you're student-athlete.' That is a myth. We intend to demolish that myth that was created by the NCAA decades ago in order to avoid letting these employees get their rights."

Citing the decision in the 2004 Brown case, Alex Barbour, an attorney representing Northwestern, argued that Division I football players are primarily students. Barbour also questioned who would be eligible to join the union, calling the 85 scholarship players on Northwestern's football team an "arbitrary" unit. He singled out walk-ons, who are members of the team but do not receive scholarship benefits, as well as incoming freshmen who participate in summer practices and seniors who exhaust their eligibility but remain on scholarship until they leave the university. Another question raised by Barbour is whether athletes -- most of whom play four or five years -- could be considered temporary employees. Adam said that "temporary" has no merit.

While CAPA is seeking to represent only Division I football and basketball players, Adam left open the possibility that non-revenue producing athletes could join at some point and said he doesn't envision the union encountering any Title IX compliance issues. The main focus in the immediate future, however, is scholarship football and basketball players. "Those are the ones that are going to help us establish, we believe, relatively easily that they are employees under the meaning of the act," he said.

Earlier this week, Alan K. Cubbage, Northwestern's vice president for university relations, released a statement regarding the school's football players' petition to unionize:

"At Northwestern, students who participate in NCAA Division I sports, including those who receive athletic scholarships, are students, first and foremost. We believe that participation in athletic events is part of the overall educational experience for those students, not a separate activity. Northwestern provides extensive academic support for all of its student-athletes, as is evidenced by the fact that Northwestern student-athletes consistently are among the leaders in graduation rates and Academic Progress Rates. Northwestern's football team maintains an overall GPA of over 3.0 and has a graduation rate of 97 percent, the highest in the country, which is a testament to their academic abilities and confirms their status as students. We do not regard, and have never regarded, our football program as a commercial enterprise."

On January 28, athletic director Jim Phillips said in a statement that the university "believes that our student-athletes are not employees, and collective bargaining is therefore not the appropriate method to address these concerns."

The ultimate decision of the NLRB, which governs the rights of private sector employees, will apply only to private universities. Athletes from public universities would need to go through their state labor boards to form a union. When asked whether he foresees a day when all college athletes are members of unions, Adam kept the focus on the immediate future. "I don't want to predict anything that's going to happen beyond the next month or two," he said.

His message Wednesday was clear.

"It's time for a change, and that's what we're going to try to do with this case," Adam said.

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