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"It's not the end, but it's beginning of the end where college athletes are going to be exploited," said attorney John Adam, who is representing Northwestern football players attempting to unionize.

Legal battle to form union kicks off for Wildcats

by Michael Smith and Will Houp
Feb 12, 2014


Brian De Los Santos/MEDILL

Quarterback Kain Colter, left, runs the option against Michigan last fall. Colter is the public face of Northwestern football players' attempt to unionize.

Northwestern University football players’ opening drive to unionize took place Wednesday morning in Chicago, with the National Labor Relations Board listening to opening statements from lawyers on both sides of the issue.

At the center of the debate is whether the athletes are employees of the university or not. The ruling will come from the NLRB’s regional director, Peter Sung Ohr.

Lawyers for the College Athletes Players Association say the players are employees because most of the team are on football scholarships and provide services for the school.

“College sports, especially football and basketball, are a business,” said John Adam, lead counsel for CAPA. “It’s more than education. It’s a freaking business.”

Northwestern lawyers counter that a scholarship does not equal employment. The players are students before athletes, they claim.

The hearing adjourned after opening remarks, and witness testimony will begin Feb. 18. If the players win, it will set a groundbreaking precedent under the National Labor Relations Act, Adam said.

The act, passed in 1935, has included private universities since the 1970s.

Gregg Clifton, co-chair of Jackson Lewis Collegiate and Professional Sports Industry Group, said players have an uphill battle.

“At the end of the day, if the players are held to be students and not employees, the party is over,” Clifton said. “There are no direct cases on point dealing with athletes.”

Because the NLRB represents private sector employers, only players enrolled at private universities like Northwestern, University of Southern California, Notre Dame and Stanford can form unions. Any attempt to form a union at a public university would require the school’s athletes to petition the state to recognize them as employees. This applies to state schools that are traditional football powers, such as the Universities of Alabama, Michigan, Florida, Texas and Ohio State University.

“It’s not the end, but it’s the beginning of the end, where college athletes are going to be exploited and be denied their rights as an employee,” Adam said. “We’re going to have witnesses that will establish that college athletes in Division I receiving payment and compensation for their services are employees under federal labor law, and they have the right to join a union and engage in collective bargaining.”

Headed by former quarterback Kain Colter, Northwestern football players announced Jan. 28 that they were seeking to form a union to be recognized as employees of the university — the first time that has been done in the history of college athletics.

“Northwestern believes the players who have brought this petition are in fact students first and foremost and they’re not employees. That is what we’ll be arguing in the hearings next week,” Bob Rowley, director of media relations for Northwestern, said after Wednesday’s hearing.

“We’re really proud of our students,” Rowley continued. “We teach them to be thought leaders, and they’ve gone out in the world and are doing that. They’ve raised an important issue. We believe they should have a say in it.

“We just don’t believe that the proper way is a labor negotiation,” he said.

The process of forming a union is difficult. First, 30 percent of the scholarship players have to sign a petition to vote. Once it has been filed, the NLRB holds hearings for the two sides to argue their cases. When that is completed, the NLRB’s Ohr decides whether the football players should be considered employees.

If he rules in favor of the athletes, there still needs to be a vote on whether to form the union, which requires a 50 percent plus one majority.

The losing party can file a request for review, and if granted, the Department of Labor board will review the regional director’s decision. Even then, another board in a different region could rule differently, experts say.

CAPA has not released the names of any witnesses that will testify except for Colter. No players were present at the hearing, but the organization has said earlier a majority of the scholarship athletes have signed agreements to join the union.