Analyzing union response to Northwestern appeal

Last week, Northwestern sent in a brief to the National Labor Relations Board to appeal a regional decision that its football players are employees. Wednesday, the College Athletes Players Association (CAPA) sent in its rebuttal. There was also an alumni meeting that included allegations that former players were threatening players, saying their networking opportunities would decrease if they voted for the union. Check the timelines of @AlexPutt02 and @bstrauss1 for more on that.

Now a quick explanation of the brief:

1. Players are not there for academics

As silly as it might sound, Northwestern argued during the hearing and in its appeal that football players are recruited, first and foremost, because they’re good students. CAPA pointed out that this is bogus, and it should win that argument pretty easily.

However, the bigger, more complicated point CAPA made relates to a case in which Brown University teaching assistants attempted to unionize. Northwestern said that case is fair precedent for this one, since both teaching assistants and football players are there to receive an education. However, CAPA argued that since football players bring in money and are recruited to play football — much further outside the academic realm than the job of teaching assistants — football players have a primarily economic relationship with the university. The NLRB’s regional director in Chicago sided with CAPA on that point.

2. Coach Pat Fitzgerald is the boss

During the hearing, CAPA established that Northwestern’s football team has rules that are separate from the rules governing regular students, and that in the scholarship tender it states that Pat Fitzgerald has the power to pull players’ scholarships if they violate those rules.

Northwestern defended itself in its appeal by saying that even though those are, in fact, the rules, the school rarely kicks players off the team. Legally, CAPA claimed, that doesn’t matter. What matters is that Fitzgerald technically has the power to do it, and therefore is the boss. In its response to the appeal, CAPA pointed to two players that it says were kicked off the team (i.e. “fired”) for, in the university’s words, “a violation of team rules.”

3. Northwestern has the power to change its policies

One of Northwestern’s biggest arguments from the beginning has been that a lot of what CAPA is asking for is outside of its jurisdiction. The university basically claimed that CAPA should really be going after the NCAA. While there are some things on CAPA’s wish list that would require a change in NCAA rules (allowing players to market themselves, for one), there are also a lot of things the university can control, particularly when it comes to health coverage.

But Northwestern has also claimed that it doesn’t have the money to give the players increased benefits. As I wrote a couple days ago, that’s a weak argument, and one that the judge in the O’Bannon case dismissed. CAPA attacked that point, too, saying there is no reason the football program needs to pay for other sports. It also said that Title IX may not apply to football players receiving more money than athletes in other sports, though there are mixed opinions on that subject.

One underrated point that CAPA also brought up: A union could actually help athletes in non-revenue sports who are not represented. If the football players achieve something in collective bargaining that could pose a Title IX violation if not applied to other sports, the university would be required to provide that benefit to those other sports, as well.

What’s next?

The NLRB will decide whether to hear the appeal. Given the high-profile nature of the case and the first-of-its-kind ruling, it probably will. However, it’s unlikely the ruling gets overturned. This board is appointed by President Obama, meaning it’s generally regarded as being pro-union, and it must at least show some preference to the Chicago regional director’s decision.

Northwestern players are voting on whether to unionize on April 25, but the votes will be impounded until the appeal is finished. From there, things get complicated.

If it is upheld and the players vote to unionize, then Northwestern will likely refuse to bargain, meaning CAPA would sue for unfair labor practices and the case would probably end up in court, possibly going all the way to the Supreme Court. However, if the ruling is upheld and the players vote no, then there is no legal mechanism for Northwestern to fight the ruling any further. Its players would still be considered employees — not ideal for the university — but legally, the fight would stop until a school’s players actually vote to unionize. If the vote to unionize doesn’t get a majority among the players, there cannot be another unionization attempt by players at Northwestern for one year.