Editor’s note: The main source for this article, Bernie Baum, is the writer’s grandfather.
Back in September, when Northwestern quarterback and the leader of players’ current movement to unionize Kain Colter wore wristbands to symbolize his stance as an advocate for more rights for student-athletes, I spoke to both my grandfather and father about what legal arguments student-athletes have for an employer-employee relationship.
Both my grandfather and father, his son-in-law, practice labor law at small firm (Baum, Sigman, Auerbach & Neuman) in Chicago, and they have extensive experience representing labor unions and dealing with employer-employee relationships.
In response to Colter’s initial actions and comments, the attorneys centered their attention around the student-athletes’ need for organization.
As soon as the news broke Tuesday with an Outside The Lines report on ESPN.com, about the players’ move to petition for representation in the form of a union. I immediately texted my grandfather, Bernie Baum, to see what he had to say because, as you’ll read below, he has particular expertise in working in a somewhat similar situation.
In 1968, NFL players came to Chicago-based labor lawyers Bernie Baum and Dan Shulman with a proposition: as a whole, they wanted to increase their ability to negotiate with team owners.
In essence, Baum said in an interview Tuesday, the “players finally decided they wanted to have an employer-employee relationship.”
Before getting into the specifics of how the two cases–the NFLPA and the Northwestern football team–relate to one another, the most important thing, Baum said, was to understand a union’s basic function.
“Forgetting about all the legalities,” Baum said, “a union is when a group of people get together to attain certain goals which they cannot attain individually.”
For the NFL players, that goal was collective bargaining.
But for Northwestern’s football players, collective bargaining for potential salaries is not the immediate cause for which they have attempted to organize.
Instead, Colter said the movement’s initial goals deal with healthcare benefits and guaranteed scholarships.
“The same medical issues that professional athletes face are the same medical issues collegiate athletes face, except we’re left unprotected,” Colter said during a press conference Tuesday in Chicago.
Other Northwestern players made that clear Tuesday, highlighted in a twitter exchange between Northwestern defensive end Deonte Gibson and 2014 recruit Auston Anderson (@noweenies23).
— Inside Northwestern (@insidenu) January 28, 2014
The tweet has since been deleted from Anderson’s timeline.
“If I look at the reality of these people,” Baum said, “particularly for football players, what their position is morally, and economically is valid.”
Baum, who graduated from Northwestern in 1959 with a law degree, used to give a yearly lecture to Northwestern student-athletes about their chances of being a professional athlete.
One student that he hypothesized was a football player due to his stature, approached him after the lecture one year. Baum proceeded to ask the student-athlete why he had his backpack with him and the student-athlete answered by saying he was going to the library to study. Baum joked about how that might only happen at Northwestern.
But that story, Baum said, highlights an important issue that student-athletes face at every school.
“If I come to Northwestern University as a football player, let’s say, my chances of playing in the National Football League are minimal. Why? Not because I don’t necessarily have the talent, but because the number of players that are drafted each year, as against all the guys who are playing college football, is minimal. That’s for everybody throughout the country… Not a lot of guys play after they graduate.
“If I come to Northwestern University and want to play football, chances are I have to graduate like everybody else in order to have a career. I’m not going to go to the NFL…so I have to have an education. So if I’m injured, if I put myself out there to be injured, and let’s say I’m concussed badly and I don’t have the appropriate care, it can effect the rest of my life.
“If you think about the issues they are raising, they are legitimate issues which really relate to their life and their subsequent employment,” Baum said.
In fact, according to an NCAA-commissioned study in 2011, only 1.7 percent of college football players go on to play football professionally. For basketball players, that number dips to 1.2 percent.
These figures demonstrate, according to Baum, a need for student-athletes to have increased health benefits during and after they graduate school and for their scholarships to be at least somewhat guaranteed.
“What really is college? They are really a preparatory league, in a sense, for the NFL,” Baum said. “From my perspective not only as a lawyer but as a fan, technically you could argue, if you really think about it, that for those few guys that make it, this is the preparatory business for them. It’s like the apprenticeship when they get into college. And the tragedy and the fact is that most of them don’t make it.”
But before Northwestern football players can begin to gain ground on their desired issues, they must legally take the steps to officially organize. The first domino in that process fell Tuesday.
“Movements of this kind,” Baum said, “have always occurred through litigation.”
One of the first things Baum said he did with the NFL players was to have them sign petition cards.
“We did two things: we filed documents with the department of labor, advising them that we were going to be a labor union. The second thing that happened, was we got cards, just like they did here, and filed with the NLRB based on the cards,” Baum said regarding the process he took to unionize NFL players.
The cards serve as a way to declare whether a group reaches the 30-percent threshold needed to petition to the National Labor Relations Board. Colter said that “nearly 100 percent” of his teammates signed the cards. He declined to say whether individual players did or did not sign the cards.
“[The organization] goes and gets cards and I’m sure this is what the card says: ‘I hereby authorize the blank association to represent me in bargaining with Northwestern University,’” Baum said.
Once an arbitrator most likely approved the card count, the College Athletes Players Association, with the support of the United Steelworkers, officially petitioned the NLRB to form a union.
While the group of Northwestern football players is the first collegiate sports team to take this step, they do have a reasonable model to study with recent cases of teaching assistants.
“There’s case law for the NLRB involving teaching assistants which supports their position,” Baum said. “There have been different decisions both ways. What they’re saying is that this really is a form of litigation to bring about change because they’re asking for something very similar.”
In December 2013, the American Arbitration Association announced that graduate teaching and research assistants at New York University had officially unionized. The group is the only graduate assistants’ union at a private university in the U.S.
Demonstrating the volatility of the NLRB, graduate assistants at NYU were granted the ability to negotiate a union contract and both improved health benefits and increased stipends in 2000. But in 2005 the ruling was switched following a case involving Brown graduate assistants in which the NLRB ruled that graduate assistants are students, not employees, and therefore cannot unionize.
The recent overturn of the 2005 ruling, though, is an encouraging sign for the newly formed CAPA.
Baum really couldn’t say how long the NLRB may take to rule on the issue or on what side they may land, but he does anticipate that whichever side loses (Northwestern or the student-athletes) will appeal.
“Do I think that they have, forgetting about the legal issue, that realistically they have a strong position? Yes, but not in particular. Legally, that’s open because the closest thing the labor board has come to is decisions on teaching assistants and those decisions have gone both ways,” Baum said.
According to Baum, the process through which this case will go may be arduous.
The first place CAPA will go, is to the labor board, Baum said. The labor board is different from a court because the labor board, he said, is “an administrative agency created by the federal government.”
“The litigated issue will be employer-employee,” Baum said. “Let’s assume that the [labor board] decides that it’s not an employer-employee relationship. That’s at the local level. In other words, there’s an office of the national labor relations, it’s the 13th region of the National Labor Relations Board. That’s going to be the issue. [CAPA] has the right to appeal that issue.”
“Then, whoever wins at the next level, has a right to go to the Courts of Appeals, which in this case would be the Seventh Circuit in Chicago. They have them review the decision of the administrative agency.
“So we’re talking about something that’s going to drag out. It’s going to drag out over three stages. It’s going to drag out over a period of time. It’s not going to be resolved immediately.”
It’s important to note that Northwestern’s football players won’t be making the case that the NCAA is their employer, but that Northwestern University is, Baum said.
In Illinois, for example, there are separate labor boards for public employees, which make a case more complicated. Baum theorizes that the Northwestern football players believe that they have a better chance of beating Northwestern in litigation than the NCAA.
When looking at all the possible arguments, Baum is impressed by the student-athletes’ actions at his alma mater.
“I think they’re doing the right thing,” Baum said. “I can’t give you a 100-percent guarantee that they’ll be successful, but I think there’s no question they’re doing the right thing because they’re protecting themselves and their ability to get an education and probably have a successful career outside of football. That, to me, is the most important thing… They’re trying to protect themselves together and that is what a union normally does.”