NCAA and others file briefs in Northwestern football union effort
Congress, pro sports unions, law professors, labor groups and economists also weigh in over NLRB ruling that Northwestern football players are employees.
The NCAA formally entered the Northwestern football player labor debate Thursday by filing an amicus brief supporting the university’s attempt to reverse a regional National Labor Relations Board decision that its players are university employees.
Briefs from various entities around the country -- ranging from six members of Congress to five pro sports unions -- were filed Thursday when documents were due either supporting or opposing the unionization efforts. Northwestern and the College Athletes Players Association (CAPA), which is leading the attempt for players to unionize, also filed their arguments before a national ruling by the NLRB.
On April 24, the NLRB allowed Northwestern to appeal regional director Peter Sung Ohr’s earlier ruling that the university’s football players can collectively bargain as employees. If the NLRB upholds the regional decision, the case could reach federal court.
Northwestern football players voted on April 25 whether to form a union. The ballots were impounded pending the NLRB’s review.
The NCAA, which is not a party in the case, said in its brief that the outcome of the case could have a “significant and irreversible, negative impact on the future of intercollegiate athletics and higher education in the United States.”
Northwestern argued Ohr improperly refused to apply the legal precedent set in the NLRB’s 2004 decision regarding Brown University. In that decision, the NLRB held that graduate assistants were primarily students, not employees. Instead, Northwestern said Ohr relied incorrectly on a definition of an employee and the amount of control the employer has.
“There is no evidence that Northwestern places its football student-athletes under ‘strict and exacting control’ throughout the year as found by the Regional Director,” Northwestern wrote in its brief. “All Northwestern students -- not just scholarship student-athletes -- are subject to conduct rules, such as policies on off-campus housing, hazing, gambling, academic dishonesty, drug and alcohol use, IT systems use, and possession or use of weapons.”
Northwestern said Ohr also did not give enough consideration to the football team’s academic success and that the relationship between the university and its players is “primarily educational, not economic.”
In its brief, CAPA said Ohr correctly held that Brown is “inapplicable in the instant case because the players’ football-related duties are unrelated to their academic studies unlike the graduate assistants whose teaching and research duties were inextricably related to their graduate degree requirements.”
Pro sports unions, Congress weigh in
Players unions for the five major pro sports in North America -- NHL, NFL, MLS, NBA and MLB -- jointly filed a brief supporting CAPA to form a union. The pro sports unions disagreed with two Northwestern’s arguments:
1. NCAA and Big Ten rules limit its ability to bargain over significant terms. The unions said CAPA and Northwestern could “meaningfully” bargain over many issues without being hurt by the purported restraints.
2. Any bargaining with CAPA on behalf of scholarship football players would interfere with Northwestern’s ability to set academic policies. The argument is “simply a variant of the argument that many employers typically make in bargaining,” wrote the pro sports unions, who noted they have successfully negotiated bargaining agreements that advance the interests of players and the sport as a whole.
Six Republican House and Senate leaders filed a brief arguing that college athletes are not employees under the law.
“As a matter of both national labor and educational policy, the Congressional Committee Members urge the Board to find that grant-in-aid scholarship football players are not employees,” the House and Senate leaders wrote in the brief. “… The profound and inherent differences between the student-university and employee-employer relationship makes employee status unworkable both as a matter of law and in practice.”
Rep. John Kline (R-Minn.), chairman of the Committee on Education and the Workforce, sent NCAA president Mark Emmert a letter on June 26 saying unions would hurt college sports. In the letter, Kline referenced issues raised by former Notre Dame football player Patrick Eilers at a May 8 House hearing regarding the length of scholarships, health and insurance benefits, stipends, and the transfer policy. Kline asked Emmert to identify all of the steps the NCAA is taking to address issues that athletes suggest “need to be resolved.”
Hausfeld LLP, the lead law firm in the Ed O’Bannon antitrust lawsuit against the NCAA, filed 1,065 pages worth of briefs and exhibits into the NLRB record.
Hausfeld said it was taking no position on the ultimate legal issue in the union case. Instead, the law firm argued the NLRB “should reject Northwestern’s deliberate efforts to misconstrue the facts with respect to the power of the NCAA and the Big Ten over the university and with respect to its claim that Northwestern football is a non-commercial enterprise whose players are students first and athletes second.”
Hausfeld inundated the record with many previously reported documents from the O’Bannon case, such as NCAA internal emails and college-sports related documents. Emails from then-NCAA vice president Wally Renfro were provided. In one, he called the notion that athletes are students as the “great hypocrisy of intercollegiate athletics.” In another, Renfro said players spend at least 45 hours a week on sports and called the NCAA’s 20-hour rule a “wink-and-a-nod approach.”
O’Bannon trial testimony from Big Ten commissioner Jim Delany and economic expert Daniel Rascher was provided into the Northwestern record. Hausfeld even included a passage from legendary Alabama coach Bear Bryant’s 1974 autobiography in which he said, “At the level we play, the boy is really an athlete first and a student second.”
CAPA also received supporting briefs from a group of labor law professors, a group of sports economists and sport management professors, and the American Federation of Labor and Congress of Industrial Organizations.
NCAA debates ruling
Until now, the NCAA had commented from a distance about Northwestern. The NLRB invited any party to offer amicus briefs. The NCAA said declaring college athletes employees would have many “far-reaching and destructive consequences” and outlined these effects:
• "Marginalize the importance of educational programs"
• "Isolate rather than integrate student-athletes as a fundamental part of the student body"
• "Undercut the demarcation between intercollegiate athletics and professional sports"
• "Undermine the revered tradition of amateurism that colleges and universities have worked tirelessly to preserve for the benefit of students in America"
• "Fundamentally alter the developmental and educational opportunities provided by college athletics"
• "Usurp the responsibilities entrusted to our academic leaders to determine what priority and role athletics should play in the educational development of the college students placed in their care"
If unions are allowed, the NCAA raised hypothetical scenarios of whether universities would have to bargain over drug-testing procedures, academic and disciplinary suspensions, how to choose who plays on the offensive line, whether to bench a player for skipping practice, and the possibility of players striking.
“It is not sufficient to simply declare confidence that the parties will be able to work out such issues through bargaining,” the NCAA wrote. “University leaders have the right, indeed the responsibility, to make these determinations with appropriate input from campus constituencies.”
The NCAA said benefits provided as a result of collective bargaining could result in players becoming ineligible because they violate NCAA rules.
CAPA noted that fellow Big Ten member Indiana recently announced a new “bill of rights” for its athletes, including providing financial support to former athletes to return to get their degree. “Of course, without the contractual guarantee that results from collective bargaining, these new ‘rights’ can also be taken away at the university’s direction,” CAPA wrote.
Also, CAPA referenced that “NCAA rules are in a process of change, which would open additional areas for bargaining.” Rules could be changed due to a new Division I governance structure and antitrust challenges.
“If what Northwestern fears is that players who are organized might receive dramatically greater compensation than players at other schools, that would not happen as long as the current NCAA rules remain in place,” CAPA wrote. “If the NCAA rules were to change such that there would be greater room for players to seek improved financial benefits through collective bargaining, the extent to which this might result in significant differences in the financial benefits provided to football players by the various schools would remain to be seen. After all, if unreasonable demands were made by players, presumably universities would not agree to them.”
The NCAA said that former Northwestern quarterback Kain Colter testified “self-servingly” at the February NLRB hearing that Northwestern players spend more time on football-related activities than academics, whereas three teammates said the opposite was true.
If scholarship college athletes are declared employees, there could be “enormous” negative financial tax implications for those players and future athletes, the NCAA wrote. CAPA said the NLRB’s decision should not have no effect on the tax treatment of football scholarships.
The NCAA also said that Congress does not distinguish between revenue-producing sports from other sports when it comes to complying with Title IX. “Title IX, therefore, is not just a conflicting Congressional scheme,” the NCAA wrote. “It is a Congressional declaration that student-athletes at our universities are students.”
CAPA argued Title IX is a “non-issue.” Wrote CAPA: “That the football players as university employees are protected against unlawful discrimination under Title VII, in addition to the protections they receive under Title IX, has no bearing on whether they are ‘employees’ under the NLRB. Such dual protections were contemplated by Congress when Title IX was enacted.”
CAPA said that Northwestern today spends substantially more on men’s sports than women’s sports, including almost $2 million for men’s scholarships, so it’s “difficult to understand why Northwestern contends that any increase in funds for football that might result from collective bargaining would require the University to devote more funds to women’s sports, where no such equality exists at Northwestern today.”
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