Northwestern University filed an appeal yesterday of the National Labor Relations Board’s ruling last month that members of the school’s football team should be considered employees and allowed to hold a union vote. The initial ruling, by Chicago NLRB Regional Director Peter Sung Ohr, sent a shock wave through college sports. A person whose opinion counted was saying what journalists and advocates have been arguing for years: The amateur model is unfair and makes no sense.
The university’s appeal attacks the decision for its novelty. Ohr, Northwestern argues, broke from precedent and cherry-picked evidence to craft a ruling that matched his own preconceptions: ”In this unprecedented decision, the Regional Director set out to alter the underlying premise upon which collegiate varsity sports is based.” If NLRB appeals had titles, this one would be, “We’ve Always Done Things This Way.” Here are four key arguments Northwestern brings:
1. The burden of proof is not on us. Since football players have not been considered employees up to this point, the appeal says, it should be up to the would-be union to show why they should be now: “This is not a case of an employer seeking to exclude … individuals already determined to be employees.” It may seem like an academic point, but if the NLRB review board finds it compelling, it could undo the ruling, which is built around a small body of evidence that comes mostly from the testimony of Northwestern quarterback Kain Colter.
2. Northwestern is the wrong place to start a players union. A key part of the players’ case is that the primary purpose of their lives on campus is to play football. While this may be true at other schools, the appeal argues, Northwestern has a good record of treating athletes as students: “The remarkable 97% graduation rate for student-athletes in Northwestern’s football program—the highest FBS [Football Bowl Subdivision] graduation rate in the country—is not something that should merely ‘be noted’ in passing.” This is not a frivolous argument. The employer at question is Northwestern, not the NCAA and the rest of its member schools. The inequities of the larger system are irrelevant. One of the ironies of this case is that Colter was inspired to try to form a union, in part, by what he learned in a class at the university.
3. It’s not about control. In ruling that football players are athletes, Ohr relied heavily on the idea that coaches and the athletic department control the conditions of labor. Control is one of the tests used to distinguish employees from other categories of people who do productive things. Northwestern says it is the wrong test. According to the appeal, a 2004 NLRB ruling on the status of graduate teaching assistants at Brown University established that, in the context of higher education, the test is purpose. If teaching assistant or football players are on campus primarily to be students, as the board found the Brown grad students to be, then they are not employees. This is the lynchpin of the Northwestern appeal and a large part of the reason Ohr’s ruling was a surprise in the first place.
4. Are you really sure you want to do this? A big part of the resistance to the initial ruling is that no one can predict the changes it might bring. As NCAA President Mark Emmert told reporters, unions would “blow up everything about the collegiate model of athletics.” Northwestern’s appeal adds to this chorus. “The Regional Director Failed To Consider That The Unionization Of Northwestern’s Student-Athletes Would Create Chaos Due To The Wide Variation Among Federal And State Labor Laws,” says one section heading. It’s true that allowing players at even one school to unionize would be hugely disruptive. But this, by itself, isn’t much of an argument. As Grantland’s Brian Phillips wrote last week: “One of the neat strategies you’ll see the NCAA’s defenders deploy in the wake of the Northwestern ruling is to start throwing out a million practical questions that have yet to be resolved, as though, if you can’t immediately answer all of them, they must be totally impossible to solve.”