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Patrick Hruby

A More Perfect Union?

What will Northwestern's union vote mean for college sports? Glad you asked

Sports on Earth

Northwestern University football players are scheduled to vote this Friday on unionization. How does that work, and what could this mean for college sports? Glad you asked:

How did we get here?

Here's the short version: in January, a group of Northwestern football players led by outgoing senior quarterback and "All Players United" activist Kain Colter submitted signed union cards and a petition to be represented by a labor union to the National Labor Relations Board, the federal organization that recognizes groups that seek collective bargaining rights.

After hearing arguments from lawyers for both the players and Northwestern, NLRB regional director Peter Sung Ohr ruled last month that the school's scholarship football players qualify as university employees -- and as such, could subsequently hold a vote on whether they want to be represented by the College Athletes Players Association, a group supported by the United Steelworkers and founded by Colter, former University of Massachusetts basketball player Luke Bonner and longtime college athlete activist Ramogi Huma.

Earlier this month, Northwestern filed an appeal with the NLRB's national office in Washington, D.C., arguing that Ohr's ruling was flawed and should be overturned. CAPA filed a response asserting that the regional decision should be upheld. On Thursday, the national office decided to review the case, which will allow both sides to make additional arguments before Ohr's decision is affirmed, reversed or modified.

So what's the long version?

The unionization battle is the newest front in a long war over the central economic question in college sports: How much collective power and control should schools have over campus athletes?

For decades, schools have banded together under the auspices of the National Collegiate Athletic Association -- a union, if you will -- to unilaterally enforce a policy of "amateurism," in which college athletes (and only college athletes) are not allowed to be compensated for their fame and/or playing ability beyond a level determined by the schools as a group. The current compensation level is capped at the value of an athletic scholarship -- room, board and university tuition -- plus anything else the school cartel deems permissible (such as bowl game swag bags).

While this arrangement would appear to be an obvious violation of antitrust law -- in fact, when the NCAA previously attempted to price-fix assistant basketball coach compensation in the manner of athletic scholarships, it was routed and humiliated in federal court -- the association and its member schools have successfully beaten back previous challenges to amateurism for a number of reasons: underfunded legal opponents; a deferential and incurious federal judiciary; public support and/or indifference; and a powerful, paternalistic cultural mythology surrounding amateurism itself, one that labels campus athletes receiving cash envelopes from boosters and recruiters as impure while lauding coaches wearing shoe company lapel pins as morally upright makers of men.

Perhaps unsurprisingly, amateurism has proven both popular and lucrative for the institutions and individuals who oversee it. As market demand for college sports entertainment -- big-time football and basketball, mostly -- has increased, so too has the amount of money in the system, from ticket sales to video game licensing agreements to billion-dollar television contracts. In turn, that money has enriched everyone not subject to NCAA compensation caps: football coaches (median salaries up 93 percent from 2005-06), athletic directors (paid an average of $515,000 annually) and NCAA president Mark Emmert ($1.7 million in compensation in 2011).

Meanwhile, athletes are subject to group boycott and punishment for any economic activity prohibited by the NCAA and its member schools, including trading autographs for tattoos and modeling self-designed clothes for a fledgling business that grew out of a classroom project. All of the preceding has led to growing criticism of both amateurism and the association itself, with Pulitzer Prize-winning civil rights historian Taylor Branch penning a devastating critique of the college sports economy in The Atlantic and another longtime campus observer writing that the "neo-plantation mentality that exists on the campuses of our country and in the conference offices and in the NCAA" holds that "the rewards belong to the overseers and the supervisors. What trickles down after that can go to the athletes."

Wow. "Neo-plantation" is pretty strong. Who wrote that, exactly?

Walter Byers, the NCAA's first executive director, who held the position from 1951 to 1988 and essentially was the architect of the modern college sports economy.

And when did Byers write that?


Has anything changed?

Well, the rewards and the trickle-down are bigger now.

So how will the actual union vote work?

The 76 Northwestern scholarship football players who are eligible to vote will be able to cast ballots at the school's basketball arena on Friday morning. None of the players are required to vote -- but those who do will determine whether all scholarship players unionize or not by a simple majority of ballots.

Will we find out the vote results right away?

No. Balloting will be sealed and remain secret until the national NLRB national office makes a final decision on Northwestern's appeal.

But something will leak, right?

It's possible, but unlikely. The best chance to get early word on the vote's outcome -- or at the very least, a rough, exit poll-style approximation -- will come from reporters, who are not being allowed on campus at the basketball arena during the vote per player request, but certainly are free to speak with their sources afterward.

What happens if the players vote yes?

If the national NLRB office upholds Ohr's ruling, CAPA will be authorized to bargain with the university on behalf of all of the school's scholarship football players. Meanwhile, Northwestern will be obligated by law to recognize and negotiate with CAPA -- something the school is unlikely to do. Instead, expect Northwestern to ignore the union and invite an unfair labor practice lawsuit, forcing a federal appeals court review of the NLRB's decision.

If the above happens, the case ultimately could end up in the Supreme Court.

What happens if the players vote no?

Simple. Northwestern's players won't be represented by a union in any sort of collective bargaining with the school.

Have athletes pushing to change the college sports system backed down before?

Yep. In the 1980s, former Duke point guard Dick DeVenzio waged a one-man campaign against the NCAA -- writing a book, Rip-Off U, that lambasted amateurism and starting an athlete advocacy group out of his Charlotte, N.C., townhouse.

In 1987, DeVenzio asked Oklahoma football stars Brian Bosworth and Spencer Tillman to delay the start of a game against Nebraska. The players considered the idea, but ultimately settled on the less disruptive option of kneeling for pregame prayer intended to draw attention to athlete's rights.

Less than a decade later, men's basketball players from schools including Wake Forest, the University of California at Los Angeles and top-ranked University of Massachusetts planned to stage a sit-down strike during the opening games of the 1995 NCAA tournament -- but according to former UMass guard Rigo Nunez, they ultimately got cold feet.

Any idea how the vote will go?

Not really. On one hand, a minimum of 26 players signed union cards for the initial unionization petition, and at the time Colter told Sports on Earth that "almost 100 percent of the guys signed cards." So initial support for the idea was substantial, and possibly quite strong.

On the other hand, the Chicago Tribune and other media outlets have reported that Northwestern players either have been uncomfortable with or declined to answer unionization questions during spring practice. Northwestern quarterback Trevor Siemian, who signed a union card in January, has said publicly that he now is against forming a union.

Why the change of heart?

The only way to answer that question is to ask each player individually following Friday's vote. That said, the unionization push has attracted extraordinary national attention and scrutiny -- as well as significant pushback from Northwestern alumni, school officials and the National Collegiate Athletic Association.

To wit: former Wildcats defensive back Kevin Brown told The Daily Northwestern that former players have told current players that voting for unionization will cause them to lose out on employment opportunities and other benefits of the school's football alumni network. The New York Times reported that former Northwestern president Henry Bienen said that unionization could mean the end of Division I sports at the school; that women's fencing coach Laurie Schiller told his team that football unionization could spell its demise; and that players have been warned that unionization would lead to fewer alumni donations, force head football coach Pat Fitzgerald to leave and result in the scrapping of a planned $225 million school athletic center.

For his part, Emmert has called unionization "grossly inappropriate."

What about Fitzgerald?

When news of the initial NLRB petition broke, the Northwestern coach publicly praised his players' initiative. Since then, he has publicly and privately urged those same players to vote against unionization, framing the matter of one of personal betrayal.

"Understand that by voting to have a union, you would be transferring your trust from those you know -- me, your coaches and the administrators here -- to what you don't know -- a third party who may or may not have the team's best interests in mind," Fitzgerald wrote to his team in an email obtained by the Times.

According to the Times, Fitzgerald also has held one-on-one meetings with players and written letters to players and their parents. Similarly, position coaches have been in contact with parents, and on the first day of practice following Ohr's decision, players received new iPads and were taken to a bowling alley for a team party.

In addition, Jeremy Fowler of reported that Northwestern has put together a 21-page document distributed to players and their families that includes 72 questions and answers on unionization.

Is Northwestern allowed to do that?

Labor law permits the school to express its opinion on unionization, so long as it doesn't make promises or threats in exchange for votes.

What kind of messages are players receiving from the school?

Here's Fowler on Northwestern's 21-page document:

"This is not what we wanted," a player says, according to the document. "How can we get back to being students and not employees? Specifically student athlete status and not employees."

Fitzgerald/Northwestern answer: "Unfortunately, the petition has been filed, and the regional director has ruled that the players are employees. Northwestern agrees with you that you men are students, not employees, and that's why the University is appealing the decision. That process has to go forward, but you can still express your desire to "get back to being students" by voting "No."

When asked by a player what recourse is available if the vote passes and a player wants out, Northwestern said they would be "stuck with the union for a minimum of one year, even if everyone changed their mind."

"And if the union tells you they would just walk away if the players change their mind, don't believe this for a minute," Northwestern says. "It is extremely difficult to get rid of a union once it is voted in."

Hey, that last part sounds a bit threatening.

Doesn't it, though?

Are Northwestern alumni uniformly satisfied with the school's approach?

No. A group of nine former Northwestern athletes called "Game Changers" believes that the unionization process has been "interfered with" by the school. Without taking a pro-or-anti-unionization stance, former player Kevin Brown told Dennis Dodd of that the group was "very disturbed because it was every sort of classic union busting. We just thought that Northwestern is better than that. This is not a typical labor management dispute."

Brown's group reportedly has met with Fitzgerald to express disappointment in his seeming shift in supporting Colter to opposing unionization. The group also is proposing a 10-point college sports reform plan that calls for expanded athlete medical benefits; a transportation allowance for player families; increased cost-of-living stipends; players getting the option to return to school and complete their degrees at any time; and deferred trust accounts for player endorsement and marketing deals.

Deferred trust accounts. Marketing deals. Hmmm. Let's cut to the chase: Would unionization mean pay-for-play? Isn't that what this is really all about?

Not necessarily. CAPA claims that they are not seeking player salaries, nor are they attempting to violate existing NCAA rules. Instead, the organization has listed the following as goals:

* Guaranteeing coverage for sports-related medical expenses for current and former players.

* Minimizing the risk of sports-related traumatic brain injury. By reducing contact in practices, placing independent concussion experts on the sidelines and establishing uniform return-to-play protocols, something the NCAA currently lacks.

* Establishing an educational trust fund to help former players complete their degrees and reward those who graduate on time.

* Increasing athletic scholarships and allowing players to receive compensation for commercial sponsorships, consistent with NCAA rules.

* Securing due process rights so that players are not punished simply because they are accused of a rule violation and that punishments levied are consistent across campuses.

Look, Northwestern has said that these goals are obtainable without unionization. So why unionize?

One word: leverage. It's one thing to ask powerful people to make changes based on the goodness of their hearts and the current direction of the wind, and another to demand and negotiate said changes because you have power yourself. Gains and concessions won by CAPA at the collective bargaining table would be protected by federal law, as opposed to being a matter of school whim and NCAA fiat.

How would unionization at Northwestern potentially affect other schools?

Because NLRB rulings only apply to private schools, 16 other big-time football schools could see their football players attempt to unionize: Baylor, Boston College, Brigham Young, Duke, Miami, Notre Dame, Rice, Southern Methodist, Stanford, Syracuse, Texas Christian, Tulane, Tulsa, Southern California, Vanderbilt and Wake Forest.

Huma says that CAPA already has been contacted by players at other schools, both public and private -- so even if Northwestern's players vote no, efforts to unionize college athletics may continue, provided that the NLRB upholds Ohr's ruling.

What about public schools?

Potential football player unionization at the 100-plus schools in Division I would be governed by state labor law. Some states limit and/or disallow public sector collective bargaining; others are more favorable to unions, including unions of student employees.

In a Buffalo Law Review article titled "A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics," authors Nicholas Fram and Thomas Frampton identify 14 states as being particularly promising for a college athlete union, including Michigan, Florida, Nebraska and California.

Could a college athlete union -- at Northwestern or elsewhere -- potentially go beyond football players?

Yes. The underlying logic of Ohr's ruling easily could be applied to Division I basketball players at Northwestern and other private schools.

If football players at Northwestern (and/or other schools) successfully unionized and were able to win concessions and benefits through collective bargaining, what would that mean for non-unionized college football programs?

In all likelihood, it would produce pressure to keep up, increasing benefits for athletes across the board.

Imagine this: unionized Northwestern and non-unionized Ohio State are competing for the same high school quarterback. Thanks to a CBA, Northwestern offers lifetime health coverage for football injuries, redeemable-at-any-time graduate school tuition as part of a scholarship package and a $10,000-a-semester living stipend; meanwhile, OSU offers the standard package of tuition, room and board. If you're said quarterback, which school's offer are you going to accept?

Better question: if you're OSU, how many star recruits do you have to miss out on before you decide to sweeten your deal?

What's more significant: Northwestern's players actually forming a union, or the NLRB ruling that the school's football players qualify as employees?

The latter. By far. Earlier this month, University of Michigan athletic director David Brandon reportedly told ESPN's Darren Rovell that he supports unionization but does not support college athletes being considered employees -- a stance that isn't nearly as ridiculously schizophrenic as it sounds, given that: (a) Michigan is a fairly pro-union state, and like any good fund-raiser, Brandon knows his constituents; (b) the word employee poses a much bigger threat to the college sports economic status quo than the word union.

Why are the NCAA and its member institutions able to avoid paying worker's compensation to injured college athletes? Because the schools have successfully -- and intentionally -- defined players as "student-athletes." Non-workers. And why have those same schools been able to act as a cartel and price-fix compensation, in blatant violation of the Sherman Act? Because those same "student-athletes" are simply engaged in intramural-like play. Non-work.

Through semantics, myth-making and clever lawyering, the NCAA and its member schools have gotten away with the fever dream of every business owner ever -- not having to pay a competitive price for workforce talent. By determining that Northwestern's football players are, in fact, a workforce, Ohr's ruling threatens to break the fever.

So the NLRB national office review is…

… kind of a big deal, yes.

How did Ohr determine that Northwestern football players are actually employees?

Ohr relied on the common law definition of the term "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."

Services. Contract. Control. Payment. Got it. So how do Northwestern players fit those criteria?

Services: Ohr found that players spend up to 60 hours a week on football-related activities, helping Northwestern market itself to both alumni and student applicants while generating approximately $235 million in revenue between 2003 and 2012.

Contract: Players are recruited for their football skill and sign a contract with the school -- called a "tender" -- spelling out the terms and conditions under which they receive scholarships for tuition, room and board.

Control: Northwestern players are subject to control from Fitzgerald and his staff both on and off the field. They are subject to drug testing; prohibited from denying coach "friend" requests on social media, so that coaches can monitor their personal communications; required to give their coaches detailed information about the cars that they drive; forbidden to get outside jobs or speak to the media without athletic department approval; not allowed to profit from their image or reputation; and only allowed to live off campus as upperclassmen if Fitzgerald personally reviews and approves their leases.

Payment: Scholarships are worth as much as much as $76,000 a year.

What is Northwestern's counter-argument?

In its formal NLRB appeal, the school basically argues that football players can't be considered Northwestern employees because:

1. They're students;

2. College football is a voluntary, non-commercial, co-curricular educational activity;

3. As such, ruling that football players are school employees makes as much sense as ruling that debate team members are school employees.

Wait. Does Northwestern actually compare its football players to debate team members?


No way.

Yes way. While arguing that athletic scholarships are neither awards for athletic ability nor compensation for athletic performance, the school's lawyers write:

… while it is true that the scholarship will be canceled if the student-athlete quits the team, that does not make it compensation for services under a contract for hire. Similarly, the debate student who stops participating in debate tournaments stands to lose his scholarship …

Is that most laughable curious assertion by the school?

Nope. Northwestern also claims that football players are not "initially sought out, recruited and ultimately granted scholarships because of their athletic prowess on the football field." Instead, they are recruited with a focus on academics, "just like [the] recruitment of all Northwestern undergraduates."

How will the NLRB national office review likely play out?

Northwestern's lawyers have their work cut out for them. For one, Ohr's decision anticipates and defuses many of the school's arguments; more importantly, the national NLRB office is stocked with Obama appointees. Why does the latter point matter? In the past, NLRB support for college student unionization has been weak under Republican presidents, and strong when Democrats control the White House.

So the timing of this unionization effort wasn't coincidental?

Probably not.

What if the case moves to federal court?

All bets are off. As previously noted, the NCAA and its member schools -- like Northwestern -- have enjoyed a long history of judicial deference when it comes to curtailing the economic rights of college athletes.

So appealing Ohr's decision was a smart move by Northwestern?

It was a necessary move. That said, Northwestern's insistence that football players are strictly students who just happen to play football could come back to haunt the school and the NCAA. How so? In 1991, the eight schools in the Ivy League were accused by the Justice Department of violating the Sherman Act by colluding to fix the price of financial aid awards, instead of competing with each other to land the best students by offering them more assistance.

Rather than fight the federal government in court, the Ivies quickly signed a consent decree agreeing to not share information on student financial aid, a practice that had gone on for four decades. If a federal court agrees with Northwestern and rules that college athletes cannot be employees and that athletic scholarships are simply a form of academic aid, what's to stop the Justice Department or an enterprising antitrust attorney from using the Ivy case as a rationale for going after amateurism? As then-Attorney General Dick Thornburgh said at the time:

"Students and their families are entitled to the full benefits of price competition when they choose a college. This collegiate cartel has denied them the right to compare prices and discounts among schools, just as they would in shopping for any other service or commodity.

"The most unfortunate aspect of this conduct is that it had a disproportionate impact on the students who needed the financial aid the most."

Question: Doesn't all of the above also apply to college athletes?

Hold up. I'm the one asking questions. Also, you keep mentioning rights and collusion and blah blah blah. Isn't this just a shakedown by those pinko Steelworkers, taking advantage of both vulnerable college kids and our finest academic institutions to skim a few bucks in membership dues?

Actually, the United Steelworkers are providing legal support, but will not receive union dues from CAPA athletes.

Could the Northwestern case impact college students who aren't athletes?

Yes. In Northwestern's request for review, the school asserts that the common law employee status test used by Ohr does not apply to enrolled university students. Not when a previous NLRB ruling found that Brown University graduate students performing teaching duties as part of their degree requirements could not unionize because they were "primarily" students and might at some point seek to bargain over core academic matters, like grades and coursework.

In their response to Northwestern, CAPA's lawyers suggest that the NLRB might want to revisit (read: overturn) the Brown ruling, in part because the ruling never explained why graduate students should be denied the right to bargain over aspects of their teaching duties that are not core academic matters.

The irony? In opposing a football players union, Northwestern may be opening a door to other student unions. Oops.

How does unionization fit in to the bigger college sports picture?

As I've written before and mentioned above, amateurism is under siege, and the union push is simply another catapult lobbing boulders over the NCAA's castle walls. In one sense, the battle involves law and semantics: if college athletes are defined as a special class, amateurs and student-athletes, it's fairly easy to deny their rights and escape antitrust prosecution; if those same athletes are defined as employees by an agency of the federal government, the same trick becomes much harder to pull off.

In a larger sense, however, this is a struggle about power. Individual schools have more power than individual athletes -- and by joining forces, those same schools have created an economic arrangement in which they have near-absolute power over athletes. Outside of a court system that historically has been rigged against them, college athletes have no way to address that power imbalance except to unite. On their own, they have little choice but to accept the terms of whatever deal Northwestern and other NCAA schools offer; together, they have an opportunity to alter the terms of the dealing.

And that means pay-for-play, right?

Again: maybe. A football player union might ask for better concussion protections, shorter practices in order to spend more time studying, the ability to sign off campus housing leases without Fitzgerald's permission. It might ask for salaries. It might just ask for the freedom to accept a gratis meal or a booster's offer of a loaner car without getting in trouble. Who knows?

Point is, players could ask for what they want. Not what everyone else thinks they should get. And Northwestern -- or any other school -- would be free to say yes, no, maybe, ask again later. Athletes wouldn't be serfs. They'd be partners. They'd have some control, which is better than no control.

Of course, that's not an outcome anyone currently in power particularly wants.

Union or no union, this fight isn't close to being over, is it?

No chance.

Read the original article at Sports on Earth