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The Inside Baseball of the Northwestern Football Players’ Right to Union Representation

Big Ten football is a big moneymaker, and its football players have organized a union to give them a fair share of the money the players’ work brings in.

The Northwestern Wildcats. (Photo: Davey83 / Flickr)

Ah, Big Ten football! What can be as important as rehashing the plays, the players’ stats, rooting for the team, and, of course, supporting the players’ legal right to union representation? Unless it is bringing in the big guns to keep the players from having union representation.

Yes, root-root-rooting for the home team is a big money industry, in which the Big Ten coaches earn seven-figure salaries. Big Ten football ensures that broadcast commentators, advertisers, builders of stadiums, and more, all ride the gravy train that is powered by the efforts of the student athletes whose time spent on practices and games makes their football work a full-time job – not counting their time spent on schoolwork.

Recently, the National Labor Relations Board convened a hearing on whether Northwestern University football players have the right to engage in collective bargaining to better the terms of their employment.

Northwestern has refused to recognize the players’ union because, Northwestern says, the players are students and, because they are students, they cannot be employees – and only employees have the right to union representation under the National Labor Relations Act (NLRA). Those of us who worked our way through college may take issue with Northwestern’s position.

We can predict that Northwestern’s strategy will be to divert attention from the real action by hiring attorneys to use the Fluff-Up-the-Facts-and-Ignore-the-Law-Play. NLRA aficionados will recognize this tried and true gambit in Northwestern’s claim that the football players are not employees under every law they can think of except, oh, gosh, whatchamacallit? Four letters, starts with an NLR. What could it be?

Quite a neat trick if Northwestern can pull that off, because even rookie labor lawyers should know that the only issue that matters in an NLRB case is whether these people – here, the Northwestern football players – are employees as defined by the NLRA.

So, here, midway through the game, we have the employer using the Hail Relevance Pass with days of evidence about who gets or does not get athletic scholarships, who is or is not a walk-on player, and who does or does not get a full-ride scholarship.

The strategy is a bold, basic divide-and-conquer right up the middle, bolstered by diverting attention from the evidence that shows all the players – not just the stars – provide valuable support for the team during practice and games.

To win, Northwestern must prove that the football players are not employees. This should be a tricky situation for Northwestern, because the National Labor Relations Act’s default position is that a worker is an employee. Sec. 2(3) of the NLRA says, “The term ’employee’ shall include any employee.”

The breadth of that definition should put Northwestern in a weak position. But don’t count them out.

Pay attention to Northwestern’s divide-and-conquer strategy. Northwestern’s football players may wear the same uniforms, but they are anything but uniform in how they are treated. The top tier of players are wooed and given full-ride scholarships. Meanwhile, “walk-ons” suit-up, but may or may not get a scholarship or ever play in a game. They do, however, play important roles in training and practice. And, truth be told, without the full complement of football players, Northwestern could not field enough players for two teams during practice.

Northwestern must craft a strategy that deals with the NLRA’s very broad definition of who is an employee and protected by the NLRA. NLRA section 2(3) NLRA defines an employee as including any employee, not limited to the employees of a particular employer. The breadth of this definition requires a strategy that can overcome the plain meaning of the law and of the NLRA’s policy.

It is not without danger, but, in this case, the employer’s best strategy is to control the line of scrimmage by ignoring the NLRA’s definition of employee and, instead, use laws that have nothing to do with the case. And that’s exactly what we see Northwestern doing. This strategy has the advantage of drawing allies in to pile on and provide cover for its analysis. But ultimately, it can only be successful if the decision maker does not know basic labor law or has a stronger allegiance to self-interest than to obeying the law.

The Legacy of the Hail Brown University Pass

The challenge for Northwestern and its allies is that the NLRA’s policy says that the United States policy is encouraging collective bargaining and protecting workers’ freedom of association, self-organization, union representation, and negotiating their conditions of employment.

But the union could get its bell rung, thanks to the Republican-dominated Board’s audacious move in the Brown University case (2004). In Brown, the Republican majority said that, “as a matter of policy,” graduate students at private universities have no right to union representation, because they cannot be both a graduate student and an employee of the university the student attends.

The NLRA does not give the Board the right to make policy decisions. Instead, 9(b) says that the NLRB must decide who is an employee eligible to vote, based on the facts “in each case.” It is impossible to understate the Brown majority’s audacity and creativity in creating a Fakerooski “law” or “policy” that overruled the actual law Congress wrote.

The Brown majority made vague claims that it was making a policy decision but never said what policy it relied on, and none of the NLRA’s policies would support the Brown majority’s conclusion. In fact, just the opposite. The NLRA’s policies include “encouraging the practice and procedure of collective bargaining” and protecting workers’ rights to self-organization and designating “representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”

The Hail Mom and Dad Play

The football players all have restrictions placed on them and/or must have the coaches’ permission to:

(1) make their own living arrangements;

(2) apply for outside employment;

(3) drive personal vehicles;

(4) travel off campus;

(5) post items on the internet;

(6) speak to the media;

(7) use alcohol and drugs; and

(8) engage in gambling.

The fact that some of these rules are put in place to protect the players and the employer from running afoul of NCAA rules does not detract from the amount of control the coaches exert over the players’ daily lives.

Turning a Violation of the Law into Evidence That a Worker Is Not an Employee

In the United States, an employer’s failure to pay at least the minimum wage is evidence that an employer has violated the Fair Labor Standards Act. Northwestern and Brown relied on the Gorgeous George philosophy – “Win if you can. Lose if you must, but always cheat.”

Brown used the Gorgeous George play to claim that paying student workers less than the minimum wage must mean the money is a student stipend and not pay for work. Northwestern claims that not paying its football players at least minimum wage means that they are not employees and not entitled to the minimum wage or other protections under the NLRA. Northwestern even went so far as to risk tangling with Social Security and the IRS by not withholding FICA taxes from the players’ scholarship money and not issuing football scholarship recipients with W-2 tax forms.

Northwestern fakes right, relying on irrelevant workplace laws for cover – but then fakes an end around by ignoring the NLRA’s definition of who is an employee. Sec. 2(3), again, states that employee status includes “any employee,” whether or not an employee has an employer. That is, the NLRA’s definition of employee includes even situations that are outside an “economic relationship.” In fact, employee status is the default position, so most private sector workers are employees and protected by the NLRA.

Finally, Northwestern fakes right over the legal limit of fairness and the players’ future well-being when there is a conflict between schoolwork and football. Football must trump the players’ academic work and even their ability to take courses needed for their major when a class conflicts with football.

Another take on the Northwestern football players’ case may be found at this link.

Documents in the real case may be found here.

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