NU players cast historic vote

ByTom Farrey and Lester Munson ESPN logo
Friday, April 25, 2014

The National Labor Relations Board in Washington, D.C., has granted Northwestern University's request to review the decision made by the regional office recognizing the school's football players as employees, according to NLRB director of public affairs Gregory King.

Northwestern football players voted Friday morning on whether to unionize, but the ballots will be impounded for now and only opened if the board sides with the players, a decision that could take months. The board's decision to approve the review was expected by both sides in the case.

"We welcome the review so that college athletes' employee status can be confirmed nationwide by the federal government," College Athletes Player Association president Ramogi Huma said in a text. 

The NLRB review provides the opportunity to expand the impact of the case beyond Northwestern, to all private schools that play Division I football. Huma said CAPA is hoping the board sets a national precedent that paves the way for unionization at other schools.

Friday's vote represents a historic moment in college sports -- but mostly provides a chance for athletes to have a voice in their own reform effort.

In other ongoing battles on the college sports landscape, lawyers are leading the charge. A major challenge to the NCAA model heads to trial on June 9, with an antitrust lawsuit related the use of player names, images and likenesses that could end up re-distributing billions of dollars in media revenues. Former UCLA basketball player Ed O'Bannon is joined in the suit by several current players, but attorneys are calling the shots.

The same goes for other class-action, antitrust claims that have been filed this year asking the courts to declare the NCAA cap on player compensation at the value of a scholarship to be an illegal restraint of trade. It's lawyers versus lawyers, including the litigator who brought free agency to the NFL, Jeff Kessler. The players who are named plaintiffs are riding shotgun.

"The key to the O'Bannon action as well as all the others is the need to reform the structure and relationship of the [NCAA], conferences and schools to the athletes," said Michael Hausfeld, lead attorney in the O'Bannon lawsuit. "Unionization is one approach to reform. A vote for unionization at Northwestern would be a positive step toward recognition by the athletes themselves that they have a right to exercise their voice. But it's just the beginning."

NCAA leaders are signaling that they are ready to move on some of the issues that CAPA -- the group behind the Northwestern union effort -- has advocated for. On Thursday, the NCAA Division I Board of Directors endorsed a restructuring of its governance model that its members say could lead to scholarships that cover the full cost of attendance, insurance against career-ending injuries, and other small forms of support, such as travel for families and free tickets to athletic events.

"They're being forced to go in the right direction after fighting us for 13 years," Huma said. "This is not being done voluntarily. They're doing it because players are mobilizing and speaking up."

Friday's vote at Northwestern, which took place at an on-campus hall adjacent to their stadium, occurred as a secret ballot.

Players are being asked by the NCAA, university officials and their coach, Pat Fitzgerald, to trust them to reform the system. The argument is that by declining to take a seat at the table, as allowed through a ruling by the regional office of the National Labor Relations Board, the players would be more likely to get what they want.

The effectiveness of that strategy may not be known for a while, as the ballots will not be opened until after the national NLRB body rules on whether to accept the ruling of its regional director in Chicago that players are employees. But the 76 eligible voters -- those scholarship players with remaining NCAA eligibility -- are under significant pressure to vote no.

Fitzgerald has campaigned against unionization, meeting with players individually and as a group. Position coaches also have met with players and their parents. Former Northwestern president Henry Bienen has suggested that schools like Northwestern would consider the elimination of Division I football before they would consider the idea of bargaining with a players union. There have been some reports that players have heard warnings that voting to unionize would make it difficult for them to get hired by alumni after their playing days, and that non-revenue sports could be jeopardized.

"I'm hopeful the players will still vote in their own best interests," Huma said. "I'm guardedly optimistic. But they are under a lot of pressure."

The university distributed a 21-page document for the football team addressing key questions. The document, obtained by The Associated Press and, was technically an educational material but had an anti-union tone. At one point, the document said, "you can still express your desire to 'get back to being students' by voting 'No.' "

The document also said divisions could emerge between scholarship players eligible for union membership and walk-ons, coaches and staff.

"There is no question but that the presence of a union would add tension in terms of creating an 'us' versus 'them' feeling between the players it would represent and those it would not," it said.

Northwestern did not release the document publicly, but Paul Kennedy, a spokesman for the university's athletic department, verified its authenticity to The Associated Press.

"They're looking at anything and everything to invoke fear in the players," Huma said. "We feel like some of the tactics are scare tactics."

Alan K. Cubbage, the school's vice president for university relations, dismissed Huma's suggestion that the school was using scare tactics

"I would say strongly that Northwestern has conducted an election campaign ... according to the procedures and the rules of the NLRB," he said.

Numerous labor experts and law professors agree that they expect the board to agree with Peter Sung Ohr's ruling that the players are employees and entitled to form a union. President Barack Obama's three appointments to the board are pro-union and are expected to support a campaign that has been supported by the United Steelworkers. The NLRB on Thursday said it will allow third-party briefs to be filed before making its decision, opening the door for the NCAA as well as other groups to formally enter the process.

If the players vote to form a union, the process would continue with a union demand for bargaining -- should the players choose to exercise that right. The university is likely to refuse to bargain, a decision that would push the dispute into the U.S. Courts of Appeal, a venue where Northwestern has greater chances for success. The union would begin this review process by filing a demand for bargaining in the higher court in Washington or in Chicago. This process would extend the dispute by as long as 18 months.

If the players vote against the formation of a union, then the process that former Northwestern quarterback Kain Colter and CAPA began in January when they signed union cards would come to an end -- unless CAPA appeals.

Gerry Berend, a former NLRB attorney in Chicago, anticipates that will happen. He cited strong anti-union comments made by NCAA president Mark Emmert and a column published on Sunday in the Chicago Tribune by an NCAA board member, as well as the aggressive techniques used by Northwestern to dissuade players. The program also recently gave iPads to the players, though the school contends those gifts were unrelated to the impending union vote.

"I fully expect the union to file an objection to an adverse result and say the 'laboratory conditions' were spoiled," he said. "The NLRB tries to conduct elections as much as possible by a 'laboratory conditions' standard. There's an argument to be made that either Northwestern's propaganda or that of third parties (NCAA) has interfered with the election."

Huma declined comment when asked if Northwestern and the NCAA have engaged in unfair pre-election labor practices.

In the event that the board would agree with Northwestern and overrule Ohr's decision, then the votes would not be counted. It is likely that the process would end at that point. The union has a rarely used legal right to seek a review in the federal district court, a trial level tribunal, but it requires extraordinary circumstances that have not developed in this process.

CAPA leaders are taking the position that no matter what happens on Friday, the players are already employees based on Ohr's determination. Bill Gould, a Stanford professor and former chairman of the NLRB, said that indeed, the players are not voting on whether they are employees. "If they vote no, that will have no bearing on whether they are an employee or not," he said. "What will have a bearing is how the [national] board rules."

Ohr's decision brings the players one step closer to qualifying for employee protections. But it's limited to employment within the context of labor law and, according to experts, would have no direct effect on workers' compensation, taxation, unemployment compensation, minimum wage, or overtime. However, Ohr's ruling could be used by players to make the case for protections in other venues they argue for employee status.

Hausfeld said that regardless of the vote on Friday, change is coming to the economic model of college sports and the NCAA's control over players.

"All of these forces pulling at the structure simultaneously may not individually make the difference, but in combination they will cause it to crumble," he said.

The Associated Press contributed to this report.