For Kain Colter, the former Northwestern University quarterback who is leading an effort to form a college players union, playing football was a "job," and his monthly scholarship stipend was a "paycheck."
In nearly five hours of testimony Tuesday, on the first day of an NLRB hearing that will determine whether college players are student-athletes or employee-athletes who can unionize, Colter repeatedly used the words "job" and "paycheck" as he described the near total control football coaches had over him during four years at Northwestern.
Colter's detailed description of the daily obligations of a college football player came after a surprising concession from an attorney for Northwestern. The attorney, in an introductory statement, conceded that the labor board could conclude that college athletes may be employees, something that Northwestern had steadfastly refused even to consider as a possibility since Colter and the College Athletes Players Association filed their petition with the National Labor Relations Board on Jan. 28.
Should the board decide that the players are employees, said the attorney, Alex Barbour, then the athletes are "temporary employees." Under American labor law, temporary employees are not permitted to form a union. It was a remarkable suggestion and the first acknowledgement from the school that the players may have a chance to succeed.
Another university lawyer, Joseph Tilson, speaking outside the hearing room, said that Barbour's statement was based on the "fleeting time that they are at Northwestern." What Tilson views as a "fleeting time" could be, of course, four or five years at the school. The NFL Players Association, a well-established and successful labor union, consists of football players whose careers average fewer than four years. The word "temporary" may be a turning point in the process as the hearing continues this week.
The 21-year-old Colter's description of his "job" at Northwestern was impressive. As he described the obligations of games, practices, workouts, seven-on-seven drills and film study, he relied on 300 pages of team schedules for the 2012 season, schedules that had been prepared by the coaching staff. Breaking the football year down into eight segments, Colter went through each month of the year describing the daily and weekly obligations of the Wildcat players. Their day begins as early as 5:30 a.m. with running and weight training and continues into the evenings with film study and meetings.
For Colter and the fledgling CAPA to succeed, their lawyers must show that athletics and academics are separate, that athletics does not enhance the educational experience, and the coaching staff's control of the players' activities is the control of a typical employer and not the guidance of an educator. Colter's testimony began to establish proof of each of these requirements, and he took it a step further with repeated assertions that although he will graduate early with an impressive 3.1 grade-point average, he could have done better without football.
To show the near-total control that the coaches had over his daily life at Northwestern, Colter told hearing officer Joyce Hofstra that the Northwestern coaches:
• Prohibited players from taking any courses that began before 11 a.m.
• Monitored what players said on social media sites and frequently required players to take down things they had written on their personal pages.
• Required players to submit leases for off-campus living for the coaches' approval.
• Required players to register their cars, including the name of the seller and the individual making any installment payments.
• Took attendance at all meals at the team training table.
• Prohibited players from leaving campus before 3 p.m. on the day Christmas and Spring breaks began.
• Required players to return to campus on Christmas Day to prepare for bowl games.
• Required players to obtain approval for any part-time jobs they could find.
• Established a detailed dress code, including the wearing of ties and jackets, to and from all games whether at home or away.
Colter, whose ambition had been to become an orthopedic surgeon caring for athletes, could not complete the requirement for pre-med studies because the team's morning practices prevented him from taking chemistry courses that were offered in the morning. He managed to take three chemistry courses and earned an "A" in organic chemistry during the summer quarters, but he could not complete the other requirements because he was late in completing the chemistry sequence.
Another attorney for Northwestern (there were four at the hearing) tried to establish in her cross examination that football did not interfere with Colter's success as a student. Annaeliese Wermuth showed that Colter had succeeded in difficult courses, including single variable calculus, statistical methods in psychology, and introduction to neuroscience.
She also used Colter's applications for internships at Goldman Sachs and Game On as evidence that he told potential employers that football had helped him in his "critical thinking skills" and in his ability to analyze "opposing ideas."
Knowing that the university must show that football is part of a player's education and not a separate activity, Wermuth pushed Colter to admit that football players must maintain an acceptable grade-point average to remain eligible. "You may think that a 1.0 is a good average," Colter replied to the attorney, "but how good is it really? It is not a sign of success."