When Northwestern University football players surprised their university three weeks ago with a petition to form a labor union, the school faced a difficult decision as it formulated its response.
Simple defiance was one alternative. American law leans heavily in favor of Northwestern and its contention that students cannot be considered employees and therefore cannot form a union. It would have been easy for the school to rely on the law, allow the players to take their best shot before the National Labor Relations Board, offer little or nothing in response, and await a favorable outcome.
The other alternative was to counterattack with all available weapons, challenging every assertion the players offered and present to the NLRB a combination of witnesses, documents and arguments that would demonstrate how a players' union would be a disaster for college sports.
With five lawyers working around the clock, presenting a minimum of six witnesses and offering thousands of pages of documents at a multiday hearing this week in Chicago, it is now obvious that Northwestern quickly decided on the second alternative. The school's effort is massive, expensive and possibly dangerous.
It started simply. In an opening statement on Tuesday, Northwestern attorney Alex Barbour, who was once the regional director of the NLRB in Chicago, stated that the players' idea of a union of scholarship athletes "simply defies logic." With the law on its side, that may have been enough for Northwestern to fight off the players' challenge. But Barbour went further, much further.
After explaining that a football scholarship was not compensation for services rendered on the football field and was instead an opportunity for a "world-class education," the attorney launched a series of "public policy" arguments against the idea of a players union.
Northwestern's injection of public policy issues into the dispute transformed the dispute from a skirmish into a war. Instead of a simple resolution of the question of whether the players were student athletes as Northwestern suggest or employee athletes as the players suggest, the dispute now encompasses every aspect of an education at Northwestern.
In its public policy claims, Northwestern suggests that a union of players would interfere with the school's implementation of the Title IX law that guarantees equal opportunities for women, destroy the structures of the Big 10 and the NCAA, and eliminate competitive balance in Division I football and men's basketball. The players and their union lawyers reply that the school can offer equivalent benefits to women to comply with Title IX, that the Big 10 and the NCAA would survive the advent of unions the same way MLB and the NFL have survived and thrived with player unions, and that there is no competitive balance in football and basketball anyway.
Whatever the outcome of the public policy discussion, Northwestern's injection of them into the dispute has prolonged and complicated the hearing. Before the hearing is concluded, Northwestern's witnesses will include its dean of admissions, its financial aid director, its chief of NCAA compliance, its deputy director of athletics for student athlete welfare, and a coach or two.
In Thursday's session, the deputy director for student-athlete welfare spent nearly four hours in a passionate description of a host of programs that Northwestern offers to its athletes to assist them with personal, academic, leadership and career development, as well as detailed descriptions of the school's mechanisms for community service and mentoring. The offerings include seven academic advisors for the football team and 96 tutors who help with specific subjects and courses.
The testimony from Janna Blais was part of Northwestern's attempt to show that its football program is much more than football and, as Blais said more than once, "a world-class opportunity to prepare for a career and for life." With all of these services and opportunities for the athletes, the school argues, it is not just a "job" as quarterback Kain Colter testified, but the opportunity of a lifetime.
Blais described programs known as "NU for Life," a career enhancement program; another effort called "NU P.R.I.D.E." (perseverance, responsibility, integrity, dedication, education); a Student Athlete Advisory Committee (SAAC); a leadership operation called PURPLE Peers with PURPLE an acronym for Peers Using Responsible Practices for Leadership and Education; a minority support program called Engage; and an anti-bullying group called Reach Out and Reinforce Respect.
The support offered to Northwestern players, Blais said happily and enthusiastically, even includes the preparation of an "elevator speech," a quick description of yourself to a possible employer, and lessons in dining etiquette.
In addition to the various social action programs for football players, Blais described an elaborate Northwestern system for evaluating football recruits before any offer of a scholarship and an even more elaborate monitoring of players' grades and academic progress.
Her presentation was clearly sincere and impressive, but it added to the mass of Northwestern evidence that has built up this week and enhanced the danger that the school's enormous effort to defeat a fledgling union can be viewed as a recognition that the players idea of a union is an important idea and cannot be summarily dismissed. If Northwestern is working so hard to defeat the players, isn't it possible that the players are a more serious threat than anyone thought when they filed their petition on Jan. 28?
Northwestern may be protesting a bit too much and giving the players credibility that they would not otherwise enjoy.
The wisdom of the huge Northwestern effort came under a harsh light on Thursday when NLRB hearing examiner Joyce Hofstra said she thought the players' case was "weak." If the university had offered nothing in response to the players' effort, Northwestern would now be on the edge of victory. But instead, the hearing will continue on Friday and may extend into next week.
Part of the university's response to the players and their union is the assertion that the union would not be able to do any serious bargaining. Most of the rules that govern the life of a football player are rules promulgated and enforced by the NCAA. None of these rules can be changed at a bargaining table that is limited to Northwestern and its players, the school asserts.
But, if the union is so powerless, why is Northwestern devoting huge resources to its effort to defeat the players. If the union cannot do anything, why not let the players have it?
In the hours after the players surprised their university with their petition to form a union, law professors and labor experts quickly agreed that the players had no chance to succeed. As the university has mounted its huge effort to defeat the players, the players' quest has become less quixotic and more plausible. This is becoming interesting.