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

04 Aug 2014 9:53 AM | Deleted user

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.


For the rest of the article on Truth-out.org click HERE.

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