Commentary

NW coach campaigning OK, to a point

He's now in role of employer whose employees are entitled to vote to form a union

Updated: April 6, 2014, 12:49 AM ET
By Lester Munson | ESPN.com

Northwestern University's football coach is urging his players to vote "no" on April 25, when they are asked whether they wish to form a labor union. The coach's actions, together with electioneering by others, raise questions about rules and the laws that govern the formation of a union:

Q: A head coach has considerable authority over the life and the career of a college athlete. Is the coach permitted to campaign for votes among his players?

A: Under the National Labor Relations Board ruling on March 26, Wildcats coach Pat Fitzgerald is now in the position of being an employer whose employees are entitled to vote on whether to unionize. As the employer, Fitzgerald, his three-member staff, his nine assistant coaches and his four graduate assistant coaches are entitled to urge "no" votes. They can try to explain to the players that the union is a bad idea for them and for the school, but they must be careful in what they say. Under the law that governs union elections, Fitzgerald and his crew may not indulge in statements that could be viewed as:

• Threats

• Promises

• Interrogations

• Retaliation

If any of the coaches, for example, discuss playing time or team privileges or a player's scholarship in the context of the election, the coaches would violate labor laws. If they question a player about his thoughts on the union, that would constitute a violation. If they suggest there would be repercussions after a vote to unionize, that would be a violation. But they are permitted to explain alternatives to the union and to offer suggestions about how to solve the problems that led the players to ask for the election.

Q: What about the union? Can representatives of the College Athletes Players Association and the United Steelworkers campaign for "yes" votes?

A: Yes, they can also campaign, but they are not permitted access to the facilities at which Fitzgerald and the Wildcats go through spring practice. They can contact the players in other ways, but they do not enjoy the advantage of hours each day with the players.

Q: What is the likelihood of labor law violations?

A: There is little likelihood of any violations. Although the university and many of the players disagreed on the need for a union, the dispute has been conducted at a remarkably professional level. There has been little of the rancor that can easily become a part of a labor dispute.

The lawyers for the players and the lawyers for the university indulged in none of the cheap shots and sharp tactics that are frequently seen in a high-stakes contest. Both sides presented their arguments in analytical, even scholarly, ways and avoided all personal attacks. I expect both sides to continue to perform at this high level without any violations of the rules.

Q: Players report that they have received threats from alumni and others who are not happy with the idea of a union. What can be done about these threats?

A: Nothing. Alumni and others are entitled to express their opinions. It is a privilege of our free society. Most college players understand that alumni can be a benefit and a nuisance. They will be able to consider alumni statements as an unavoidable complication of the union election. The players know that they will be voting on secret ballots and that, ultimately, no one will know how they voted.

Q: The former president of Northwestern has suggested that some schools will cancel Division I football instead of bargaining with a union of players. Is this threat permissible under the rules?

A: Yes. Henry Bienen, the former president, is no longer an agent of the university. If an agent of the university made the same statement, it would be a serious problem. But Bienen, like the angry alumni, is able to say whatever he wishes to say. As a member of the Knight Commission and a former president who was committed to Wildcat athletics, his thoughts are important but have no official standing in the election.

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