CAPA vs. Northwestern: Breaking down the labor briefs

CHICAGO — Northwestern and the College Athletes Players Association both submitted briefs to the regional director of the Chicago office of the National Labor Relations Board on Monday, the latest move in Northwestern football players' attempt to unionize against the university.

There is no specified timeline, but Regional Director Peter Sung Ohr is expected to make a decision on the case within the next 1-2 months. Regardless of which side wins, the decision is expected to be appealed to the NLRB's national board.

Both CAPA and Northwestern sent their briefs to USA Today Sports and they can be read in full here and here. Here is a look at some of the key points in the brief and how they play into the case.

Notes from CAPA's Brief

1. "An Employee is an employee ... whether his employer is enlightened or unreasonable."

One of Northwestern's main points throughout the hearing was that it treats its players well. CAPA's brief points out that, under the National Labor Relations Act, the players do not believe the treatment from the university should matter. The brief noted that "Indeed, the Players view Northwestern as a good employer ... But an employee is an employee, whether his compensation is generous or parsimonious, whether he has excellent or tenuous job security, and whether his employer is enlightened or unreasonable."

CAPA also cited a previous case to assert that "the term 'employee' as used in the Act reflect(s) the common law agency doctrine of the conventional master-servant relationship" and "[c]onsideration, i.e., payment, is strongly indicative of employee status." In other words, just because the university doesn't call the players employees, that doesn't mean they're not employees.

2. An attack on the Brown University case

The brief focused heavily on attacking a major Northwestern point that the national board had already ruled that Brown University teaching assistants could not organize to engage in collective bargaining. That case was considered by many people to be the closest precedent for this one. It overruled a previous case that had allowed New York University teaching assistants to organize.

However, CAPA argued that the Brown decision does not apply, saying that the decision in that case was not due to their employment status. Rather, CAPA argues, it "was premised on the finding that the graduate assistants' teaching duties were an integral part of their post-graduate degree program." They claim that the Northwestern football players are different because they do not receive academic credit for playing football.

3. Football separate from academics

CAPA did not suggest that Northwestern's football players are not also students who are trying to graduate. However, they contended that the players are both students and employees, not just one or the other.

Throughout the hearing, CAPA's lawyers pointed to the Northwestern football team's handbook and pointed out rules that differentiate athletes from other students. Moreover, they say that the scholarship is for football, not academics. From the brief:

The "athletic aid" provided to the Players is explicitly provided in return for their services to the football team. The scholarship offer states that it is being made by "the Northwestern Football Staff and [Coach Fitzgerald]." ... It recites that the Player "understand[s] this tender may be immediately reduced or cancelled" if he becomes "ineligible for intercollegiate competition" or "voluntarily withdraw[s] from [the] sport at any time for any reason." ... A scholarship can also be cancelled if the Player "[a]buse[s] team rules as determined by the coach or athletic administration."

This section is meant to illustrate the fact that Fitzgerald is the boss and can decide whether to pull a player's scholarship based on the team's rules (or what CAPA would call the employer's rules). CAPA also points out in the brief that athletes must abide by different policies than other students regarding social media, drugs and alcohol, among others. The brief notes that one player during Fitzgerald's tenure has had his scholarship revoked for violating the drug policy.

Other points from CAPA

• Northwestern brought up that collective bargaining could affect Title IX compliance, but CAPA argues that is not true because Title IX does not govern uneven financial support for men's and women's sports. Currently, the university spends more on men's sports. CAPA said that Janna Blais, Northwestern's Deputy Director of Athletics for Student-Athlete Welfare, "admits that Northwestern could 'answer . . . the concern' by allocating more money to women's sports."
• CAPA said that the change this could cause to NCAA football or Northwestern's athletic department should not have an impact on the decision. "The Board does not concern itself with employer profitability."
• Northwestern argued that this is an NCAA issue, and that within NCAA rules, the university cannot give the players what they want. CAPA said collective bargaining success is irrelevant, but they will still only collectively bargain for things within NCAA rules. We covered this a bit last month.
• This was brought up a lot in the hearing, but in the brief, CAPA noted that players were told to schedule class around football, though the strictness of that rule was debated. CAPA wrote that football restricts players academically, arguing that "although the aggregate grade point average of the Players is a commendable 3.0 … that ranks 18th out of Northwestern's 19 teams." Even so, the brief states that "the relevant question is not whether the Players and the University regard it as important that the Players receive their degrees."
• CAPA said that they chose the unit they did — only scholarship athletes — because they believe those athletes best meet the criteria of employment since they receive scholarship as a form of compensation. However, they would not be opposed to including non-scholarship athletes if the regional director sees fit.
• During the hearing, Northwestern argued that football players could be considered temporary employees because a scholarship only lasts four years. However, CAPA dismissed that, citing previous NLRB cases and the fact that NFL contracts are, on average, shorter than four years, and NFL players have collective bargaining rights.

Notes from Northwestern's Brief

1. A scholarship is not compensation

Although CAPA claims that a full-ride scholarship — worth $61,063 at Northwestern — is compensation, the university claims otherwise. From the brief:

Athletic scholarships are purely that—scholarships—and as such they are not treated as compensation for purposes of income taxes or withholdings… Student-athletes at Northwestern do not pay taxes on the athletic grant-in-aid… In addition, student-athletes at the University do not receive W-2's for the athletic grant-in-aid.

Athletes also receive a stipend for food and living expenses when they move off-campus, but there are no tax deductions or withholdings from that money, either. CAPA argued that because some of the stipend money is deducted for mandatory meals, that means the university gets to decide what the players do with their money. However, Northwestern said that the money deducted for those meals is part of the "board" covered in the scholarship. The university also said athletes don't receive benefit plans that other Northwestern employees receive.

2. Educational purpose, not an economic one

Much of Northwestern's brief discusses the entire student-athlete experience, saying the "student" and "athlete" experiences are mixed. The brief notes that football players applying for admission must meet certain academic standards, therefore proving that while their football talent is taken into account during admission, so is their academic prowess — an indication that the athletes are also students. Northwestern argues that its purpose as an academic institution sets it apart from other employers.

The university says the National Labor Relations Act is "fundamentally designed to cover economic relationships between employers and employees," and that "the predominantly academic relationship between student-athletes and universities is a far cry from the employer-employee economic relationship that motivated Congress to pass the Act."

For that reason, Northwestern says that the Brown case is applicable to this one, since both graduate teaching assistants and football players need to be students to participate in their other roles: "The Board was also influenced in its decision by the fact that the continued receipt of a stipend and tuition remission depended on graduate assistants' continued enrollment as students, and was not dependent upon the nature or value of the teaching or research services."

3. Academic success

Northwestern argued that football has helped former athletes find success in the academic fields that they pursued while at Northwestern, and that participating in football did not hinder other students' academic goals. The university pointed out the success stories of former players who testified — two had gone on to careers in engineering and one was in medical school.

The university even used Kain Colter — the former Northwestern quarterback and CAPA's main witness — as an example, because he received an internship at Goldman Sachs.

The brief included a number of academic resources for athletes. Athletes receive tutoring and academic advice, and they are allowed to sign up for classes before other students to help accommodate their busy schedules.

To show that academics are more important than football at the university, Northwestern pointed out that Fitzgerald "will allow the student-athlete to miss practice in order to take the course or make other accommodations." This happened in at least one instance in recent years, when a player was allowed to skip practice for a week to study, rather than prepare for or participate in a game against Nebraska.

Other points from Northwestern

• The Brown University case was key for Northwestern, just like it was for CAPA. However, Northwestern said that it does apply to this case, because football players "are first and foremost students, and their status as members of the football team is contingent upon their continued enrollment as students and maintaining satisfactory progress toward obtaining an academic degree."
• Northwestern says that walk-ons cannot be considered employees "by any stretch of the imagination" because they do not receive compensation. And since the university claims that walk-ons were not treated differently from athletes that did receive scholarships, this would pose a problem with the unit proposed by CAPA.
• The university says that if scholarships are deemed compensation, then they would have to be taxed, and "there is no indication that the IRS has ever sought to treat athletic scholarship benefits as taxable income."
• Northwestern claims football is a voluntary activity, just like any of its 480 co-curricular activities.
• Although scholarships can be pulled, Northwestern said that it rarely does this and that there is an appeals process for athletes.
• CAPA spent a lot of time during testimony finding out how many hours athletes actually spend on football, as opposed to which hours are counted. The university deflected blame to the NCAA, saying it has to abide by those rules. They also said they are not allowed to change some things that players might want because they are restricted by NCAA rules.
• CAPA has said that it is not seeking economic benefits at this time, largely because NCAA rules wouldn't allow it. However, Northwestern wrote in its brief that "inevitably CAPA will demand bargaining over economic issues, including pay. It is folly to think otherwise."
• Northwestern contends that a "hypothetical free market does not and cannot exist in college sports under the current NCAA framework. Instead, chaos would exist under a regime where some football teams are unionized and some are not." This draws importance to something CAPA claims is irrelevant: the inevitable change to the collegiate athletic model.
• Northwestern disagrees with CAPA's assertion that Title IX would not be impacted, saying that "every dollar of economic benefit to a male would have to be matched proportionately for female student-athletes to comply with Title IX."