The Northwestern University football unionization fight, explained

In April 2014, football players at Northwestern University voted whether they would like to form a labor union. But the results of the election are still unknown, pending a decision from the National Labor Relations Board.

At least 30 percent of the players initially signed union cards, a requirement for the NLRB to take the case in the first place. But it’s far from certain that a majority of the team’s scholarship players actually voted to unionize. In the grand scheme of things, though, that might not matter. Their effort contributed to a national debate about what colleges owe their student-athletes.

A union is a group of workers who join together to protect their rights. They negotiate with employers over things like pay, benefits, and working conditions, in what is called collective bargaining.

The NLRB is a government agency that was created in 1935 to protect workers’ rights to organize. It oversees union elections, investigates and decides cases, and helps determine settlements in those cases. It has 26 regional offices nationwide and one central office in Washington, DC.

The unionization effort has been led by College Athletes Players Association, an association of current and former college athletes that’s developed from previous advocacy groups for student athletes. CAPA had the help of the United Steelworkers, which paid the legal team arguing the case.

Kain Colter, the team’s former quarterback and a 2013 Northwestern graduate, is one of CAPA’s three leaders. The players argued that their athletics scholarships, worth tens of thousands of dollars, counted as compensation, and that they’re therefore university employees who should be permitted to unionize and bargain collectively with the university.

The players have a wish list, including more coverage for sports-related injuries, allowing players to keep money they earn from sponsorship agreements, and due process when dealing with NCAA infractions. The players aren’t asking to be paid, although many commentators have suggested that pay for college athletes would be the end result of allowing athletes to unionize. For now, CAPA’s argument hinges on the opposite idea: that college athletes already are paid through their scholarships, and therefore are employees.

Northwestern argued that its student-athletes (the NCAA’s preferred term) aren’t eligible for collective bargaining for two reasons: one, they are temporary employees, meaning they would not be eligible for collective bargaining, and two, that the school was drawing an arbitrary line between scholarship and walk-on athletes.

In making its case, Northwestern invoked a 2004 case in which Brown University graduate student assistants argued that they were employees. In that case, the NLRB ruled against the students, finding that have a predominantly academic, rather than economic, relationship with their school.

The NLRB has flip-flopped on whether college students can ever be considered employees, with board dominated by Republican appointees contending that they cannot and those with Democratic appointees contending that they can. In 2000, the NLRB voted to let graduate students unionize at New York University, before reversing that decision in the Brown case in 2004. During the Obama administration, the NLRB — controlled once again by Democrats — indicated that it wanted to reconsider the Brown decision, taking another case brought by NYU graduate students. But the university settled, allowing the students to form a union, and withdrew its case. The students voted to unionize in December 2013, and the NLRB was not able to set a new precedent that would reverse its decision on the Brown graduate students.

Peter Ohr, regional director of the NLRB’s 13th district, ruled that the players were in fact employees, under the common law definition of the word. He noted that the burden of proving the players were not employees was on Northwestern, and that Northwestern failed to prove this.

”Under the common law definition [of “employee”], an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment,” he wrote.

Ohr wrote that the 2004 ruling in the Brown University case did not apply in this case for a number of reasons, all of which focus around the separation of athletic duties and academic life. He argued that football players are not “primarily students,” as they often will “devote 40 to 50 hours per week on football-related activities while only spending about 20 hours per week attending classes.” He also noted that competing is not a part of degree requirements, that athletes are not supervised by academic faculty, and that the school only offers athletic scholarship money to students in exchange for athletic duties.

He added that the relationship between players and the team is “an economic one that involves the transfer of great sums of money to the players in the form of scholarships” that range from $61,000 to $76,000 per year per athlete, totaling more than $5 million per year.

Ohr in addition ordered that there be a union election, open to all scholarship football players who are currently eligible.

The school has come out swinging. Northwestern issued an appeal on April 9, saying the NLRB ruling would “alter the underlying premise upon which collegiate varsity sports is based.” The appeal takes aim at many facets of Ohr’s ruling, arguing that the burden of proving players weren’t employees should not have been on Northwestern. The school noted its football players have a 97 percent graduation rate, which it argued is a sign that its players are primarily students.

It also blasted the ruling as “replete with factual errors and mischaracterizations.” Among those, the school argues, was the “arbitrary” distinction the school drew between walk-on and scholarship football players. The school also argues that the “recruitment of student-athletes-just like recruitment of all Northwestern undergraduates-focuses on academics,” and not athletics.

Northwestern’s football coach, Pat Fitzgerald, urged the players to vote against unionization, arguing that it’s in the athletes’ “best interests” not to organize.

The NCAA also issued a statement, though it is not directly involved in the case, saying it “strongly disagree[s] with the notion that student-athletes are employees.”

While the repercussions have been widely discussed, some things remain unclear. For example, one of the points Ohr made in his decision was that Northwestern’s football players generate large revenues for the school. It’s not yet clear whether the ruling will affect athletes in non-revenue sports.

Larry Scott, commissioner of the PAC 12 athletic conference, wrote in a USA Today op-ed that this could jeopardize non-revenues like swimming and softball, and women’s sports in particular, by diverting resources away from them.

However, not everyone buys that argument. CBS sports columnist Jerry Hinnen argued in a response to Scott’s column that the effects need not be as far-reaching and devastating for other sports as Scott seems to think. Players at Northwestern aren’t asking for drastic changes, he noted, but are instead asking for larger scholarships.

One thing that is clear is that the right to unionize also would only affect private schools, as the NLRB’s jurisdiction does not extend into the public sector.

But that raises the question of recruiting advantages. As Sports Illustrated legal analyst Michael McCann noted last month, there are a number of states that limit public employees’ ability to unionize. That means athletes at some schools would get union rights that athletes at others would not. And if players are paid at some schools and not others, that could really give some universities a leg up in recruiting the biggest talent.