NLRB's N'western ruling to be issued

Updated: March 26, 2014, 10:25 AM ET
By Lester Munson and Tom Farrey | ESPN.com

With all due respect to the glories of the Sweet Sixteen, the center of the college sports universe for the next couple of days is a government office on the ninth floor of a landmark building downtown in Chicago.

In that office, the regional director of the Chicago district of the National Labor Relations Board, Peter Sung Ohr, will decide whether scholarship football players at Northwestern University qualify as employees who can form a union and bargain for benefits. Ohr told "Outside the Lines" on Tuesday that he expects to adhere to his plan to release his ruling within the 30-day window after the close of the hearing that his office conducted on the issue last month.

The hearing closed on Feb. 25, which would place the end of his window at Thursday.

Ohr's decision is the next step in a process that, when coupled with litigation against the NCAA and legislation making its way through Congress, could produce radical changes in college sports. The decision could signal the beginning of the end of the NCAA's concept of the "student-athlete" and recognize the enormous commercial enterprises that football and men's basketball have become, forcing schools to share more of their bounty with players in the form of medical and perhaps financial benefits.

Here are the possibilities that Ohr is considering as he reviews testimony and documents offered in seven days of hearing in February:

The players are student-athletes whose prime mission is academic. This would be a victory for Northwestern and the NCAA and force Kain Colter, the leader of the NU players as spokesman for the College Athletes Players Association, to appeal to the national labor board in Washington. "NCAA sports is professional," Ramogi Huma, president of CAPA, said in an ABC News interview last week. "The players are paid to play. They receive at Northwestern a scholarship that's worth over $60,000 per year, in return and on the condition that they play football. That's an employee/employer relationship.

The players are employee-athletes who are eligible to hold an election on whether to form a union. This would be a victory for the players and for players at the dozens of private universities who play Division I sports. It would force Northwestern to appeal and could cause some colleges to reconsider their commitments to football and men's basketball, though consumer demand will likely ensure that games fans have come to love will continue on, no matter the underlying economics.

• The players are temporary employees. This would also be a victory for Northwestern and the NCAA, and force the players to appeal. The attorneys for Northwestern have asserted the "temporary" nature of players employment as a fallback position during the hearing and in the briefs. It seems implausible when an NFL football career averages less than four years and a college career can extend to five years, but it is a possibility for Ohr's decision.

As he ponders his decision, Ohr can rely on testimony from Colter that described the demanding life of a Northwestern football player as a "full-time job" as well as the testimony of head coach Pat Fitzgerald who described his program as the "best player development program in the country," a well-rounded system that allows his players "to be the best that they can be."

In addition to the testimony from Colter, Fitzgerald, and several Northwestern compliance, admissions, and student welfare officials, Ohr will look to previous decisions in similar cases for guidance. But, as he searches the legal precedents, Ohr is undoubtedly discovering that the previous cases offer support for both sides.

The most important legal precedent is the attempt of graduate assistant instructors at Brown University to form a union. The NLRB ruled that the instructors were primarily students and could not form a union, but the situation of the Northwestern football players and the grad students are clearly different in three ways.

First, the graduate instructors were teaching and researching in the academic subject in which they sought a masters or a Ph.D. There is no similar connection between the responsibilities of a football player and his work in his academic major. Colter testified, for example, that his duties as a player interfered with his selection of academic courses.

Second, the grad students were working under the supervision of professors who also guided their academic work, while football players are working under coaches who are not members of the faculty.

Third, the grad students' efforts were part of their course of study, and they received academic credit for it. Football players' efforts were not a part of any course of study and are more economic than academic.

Many legal analysts are expressing skepticism at the players' chances to succeed. But a former chairman of the National Labor Relations Board said he predicts the NLRB eventually will rule for the players.

"They undoubtedly are employees," said William Gould, now a Stanford professor. "The athletic department controls important aspects of the conditions under which they provide services." When they need to show up to practice and play. What they eat. Who gets to keep their athletic scholarships.

The NCAA argues that athletes are students, not employees. "But no NLRB ruling has ever said you are one or the other," Gould said. He said the athletes' chances under the NLRB should improve further in the coming months if, as he expects, the current board (President Obama appointees, more pro-union) reverses the grad student decision made by George W. Bush.

On Tuesday, the Women's Sports Foundation weighed in, reminding the NCAA of equitable treatment for female athletes under an education-first model for college sports. 

"The Women's Sports Foundation has already made it clear to the NCAA that additional stipends to student-athletes must be allocated equitably between men and women, and any multi-year scholarship benefit must be awarded equally," said Nancy Hogshead-Makar, WSF senior director of advocacy. "If athletics are an educational opportunity, as part of a student's preparation for the future, then women must be given an equal opportunity to participate in this unique type of educational opportunity."

Any number of other events could impact the ultimate outcome. A settlement in which the players get the protections and benefits they seek in exchange for not creating a union. Parallel challenges by players at public universities where the same question -- are they employees? -- gets reviewed under state labor laws. A decision in the Ed O'Bannon lawsuit (trial set for June 9) that recognizes players' rights to licensing fees and media revenues. The lawsuit filed last week in New Jersey challenging the NCAA's cap on player compensation at the value of an athletic scholarship.

As Ohr ponders his decision, he may also be considering the larger picture of college athletics. Will he view football as part of a grand, uniquely American tradition that combines higher education and competitive sports, the ultimate realization of the amateur ideal? Or, will he recognize the commercial nature of football and the fact that universities profit from producing mass spectacles of entertainment on Saturday afternoons and during the bowl season?

Orh's decision will not be the end of the dispute -- the case will no doubt be appealed to the federal appeals court and could end up before the U.S. Supreme Court -- but it will be an important step in the process.

Tom Farrey | email

Writer, Reporter

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