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Northwestern, CAPA outline arguments in initial NLRB hearing

The potentially historic case is underway

David Banks

CHICAGO — Inside a small hearing room up on the ninth floor of The Rookery building in Chicago, National Labor Relations Board hearing officer Joyce Hofstra began proceedings Wednesday morning regarding Northwestern University football players’ attempt to unionize.

Attorneys representing both the College Athletes Players Association and Northwestern University outlined their cases, asserting their parties’ positions on the case.

"For too many years college athletes have been exploited and have been denied their rights as employees," said attorney John Adam, who represents CAPA, following the hearing. "We believe this is the beginning of the end of that exploitation and that through these National Labor Relations Board proceedings, we will establish under labor law that they are employees and are entitled to the rights of employees under labor law…

"It’s time for change and that’s what we’re going to try and do with this case."

No witnesses testified at the initial hearing as the legal counsels laid the groundwork for what may prove to be a landmark case in collegiate athletics.

According to Adam, the "crux" of the case is the student-athletes’ status as employees.

Both parties largely agreed upon that proclamation, but the terms defining what it means to be an employee and whether those terms apply to the student-athletes will be the issue at the heart of the case.

"One of the tests of an employee is does the employer control the employee," Adam said. "On and off the field, these football players are controlled extensively by the university: what they can do, what they can say, where they can go, everything is controlled. The extensive control of the university over the football players is one of the examples of why they’re employees, as well as the hours of work, as well as the compensation."

During the hearing, Adams alluded to the definition of an employee laid out in Section 2(3) of the National Labor Relations Act of 1935.

In response, Alex Barbour, who is representing Northwestern in the case, said during the hearing that in this particular case, the definition of employee is "not limited to the common law definition of employee" and cited a similar case involving teaching and graduate assistants at Brown University as precedent.

In 2001, the NLRB ruled in favor of labeling teaching assistants, research assistants and proctors at New York University as employees according to the definition of an employee outlined by the National Labor Relations Act. In 2004, however, the NLRB reversed its decision in the case involving Brown.

In the Brown decision, the three members of the five-member board that ruled against the graduate students’ statuses as employees wrote the following as a reason for the outcome:

"It is clear to us that graduate student assistants, including those at Brown, are primarily students and have a primarily educational, not economic, relationship with their university. Accordingly, we overrule NYU and return to the pre-NYU Board precedent."

By using the Brown case as precedent, Barbour represented Northwestern’s stance in opposition to CAPA’s proclamation that athletic scholarships are compensation for playing football.

"At Northwestern," wrote Vice-President for University Relations Al Cubbage in an official statement, "students who participate in NCAA Division I sports, including those who receive athletic scholarships, are students, first and foremost. We believe that participation in athletic events is part of the overall educational experience for those students, not a separate activity."

To counter, Adams maintained that football was not an academic activity and, thus, the athletic scholarship is a form of payment.

"We believe that the scholarship, the aid, the payments that are made to them, the tuition, the stipends they get, the thousand dollars or more a month – that is in essence compensation for their services. They are paid by the university for playing football. If they don’t play football, they don’t receive the aid, they don’t receive the compensation, they don’t receive the room and board. So the idea that somehow this is a gift to them or it’s somehow solely related to the education is not true. If you don’t play football, you don’t get the scholarship," Adams said.

Barbour also challenged CAPA on the legality of the union.

"We believe that the petitioner is an arbitrary grouping of only some of the individuals who participate and are members of the Northwestern football team. There is no appropriate unit in this case," he said during the hearing.

According to the official petition to the NLRB obtained by Inside Northwestern, the unit involved in the petition includes "all football players receiving grant-in-aid scholarships from Northwestern University."

Because of this, Barbour brought into question the potential role and representation in the union for walk-ons who don’t receive an athletic scholarship, incoming freshmen who practice with the team in the summer, and seniors who have completed their eligibility but will not graduate and complete their education until months after their eligibility ends.

"I don’t want to get into the specific legal strategy," Adams said about Barbour’s point, "but right now our petition is for Division I athletes receiving scholarships because scholarships are in essence compensation. They’re payment for services. And they help us establish that they are employees. Whether walk-ons or others are employees is an issue that can be addressed later on. It’s really a secondary issue."

Following the hearing, both counsels will have the opportunity to review various documents in preparation for further hearings.

As of now, the next hearing, which will include testimony, is scheduled for 9 a.m. on Tuesday, Feb. 18.