Northwestern union vote intriguing, but NLRB ruling more significant

Thursday April 24th, 2014

Following Kain Colter's lead, Northwestern football players will vote on Friday whether to form a union.
David Banks/Getty Images

This one is sexy. This one is exciting.

Most of the issues facing major college sports are byzantine, nuanced and fairly boring to discuss. They require an understanding of how voting in the NCAA works and how schools generate revenue -- or don't -- from their athletic programs. They do not lend themselves to 30-second sound bytes that go beyond the pay-the-players/keep-the-status-quo ranting that doesn't actually address anything real.

Friday's Northwestern football union vote feels different. It draws a clear battle line. Yes or no. That should make for some high-quality sound bytes because almost everyone has an opinion on unions. Those who embrace televised debate have a topic into which they can sink their fangs. Finally, an event with a winner and a loser.

MANDEL: Breaking down the union movement's competitive impact; more Mailbag

Except, like everything else in the evolution of major college sports from semi-charitable avocation to multibillion-dollar business, it isn't really that simple. Yes, 76 Northwestern players will vote on Friday to decide whether to form a union. But the results of that vote may not be known for months as the National Labor Relations Board considers a request by Northwestern to review an NLRB regional director's ruling that the players qualify as employees. Also, the results of Friday's vote don't matter as much as the NLRB's final determination.

Judging by recent comments from current Northwestern players, the Wildcats are likely to vote against a union. "We filed for employee cards, but that doesn't mean a union is the right avenue," quarterback Trevor Siemian told The Chicago Tribune this month. "Especially at Northwestern, where most guys on the team agree we have been treated very, very well. I'm treated here far better than I deserve." That would be hailed as a victory for the status quo, but it will be a hollow one if the NLRB ultimately rules that private-school football -- and presumably men's basketball -- players are school employees. By the same token, a yes vote on unionization would be meaningless if the NLRB reverses the regional director's ruling and declares that the athletes aren't employees. We probably won't know the results of the Northwestern vote until we know what the NLRB has decided, and the NLRB's decision is the far more important one.

Unionizing the football team at Northwestern was always a longshot. The reason the Wildcats were selected by union backers was former quarterback Kain Colter's passion for the issue, and Colter succeeded in getting the issue before the NLRB. But as programs from the five power conferences go, Northwestern least resembles a football factory. Wildcats coach Pat Fitzgerald has earned the respect of his players, and the majority of them aren't likely to go against his wishes. But if the NLRB decides the players are employees, Northwestern isn't the only school involved. Every private school that plays big-time sports would face the same issues.

Reading regional director Peter Sung Ohr's ruling, Colter and the organizers of the College Athletes Players Association made a strong case that major college football players met all four prongs of the test for whether a student is also a university employee. They are:

1. Are the players students?

(Yes, obviously.)

2. Is the work an integral part of the student's educational experience?

(If it is, then the students are not employees. Unfortunately for Northwestern, another student can earn the same communication studies degree that Siemian is studying for without playing football.)

3. Who oversees the students' work?

(If the answer is professors in the department that offers their major, the school is in good shape. That isn't the case here. Fitzgerald and his staff are athletic department employees -- not faculty.)

4. Is the student's financial aid dependent on the nature of the services he is asked to perform?

(If not, then he's not an employee. But since Northwestern players wouldn't be recruited to the school if they weren't good at football, they've got a pretty strong argument here.)

Northwestern laid out its case in a 50-page request for review, but it didn't offer much strong evidence to contradict the players. It also offered this gem: "Contrary to the Regional Director's findings, Northwestern's scholarship student-athletes 'are not initially sought out, recruited and ultimately granted scholarships because of their athletic prowess on the football field.'"

That statement should make all the smart MAC and FCS players who didn't receive scholarship offers from Northwestern feel much better. See. It wasn't because you weren't good enough. Unfortunately, it's a bald-faced lie. Of course the players were recruited based on their football ability. If they were recruited based on their academic ability, their high school grades and standardized test scores would match or exceed the high school grades and standardized test scores of their classmates. Here's guessing that Northwestern officials would not enjoy producing those aggregate numbers in a hearing. If Northwestern has to resort to lying to federal agencies to make its case, it has a pretty weak one.

That's why schools probably shouldn't relax even if exit polls on Friday show the Northwestern players voted against unionizing. If the NLRB ultimately rules players are employees, there will be a host of new issues for schools to handle. These could include taxation issues for all players -- and possibly for athletic departments -- and immigration issues for international players.

Also, if athletes are employees, some team at a private school somewhere will eventually vote to unionize. Not all coaches are as beloved as Fitzgerald. Not all schools treat their athletes as well as Northwestern does. Because of numbers, the chances are much greater that it will be a men's basketball team instead of a football team. On a basketball team, only seven of 13 scholarship players would have to agree to form a union. A galvanizing event such as the firing of a popular coach or the hiring of an unpopular one could easily tip the scales in favor of a union.

So, while most of the coverage these next two days will focus on the vote itself, don't get caught believing the sound bytes. Like anything else involving college athletics and the government, this issue won't be resolved quickly or cleanly.

JOHNSON: Clearing up legal misconceptions surrounding Northwestern union vote

SI Apps
We've Got Apps Too
Get expert analysis, unrivaled access, and the award-winning storytelling only SI can provide - from Peter King, Tom Verducci, Lee Jenkins, Seth Davis, and more - delivered straight to you, along with up-to-the-minute news and live scores.