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April 24, 2014

NU vote will likely be a historical footnote

Northwestern graduates Perry Gattegno, an attorney, and George Stowe, a law school student, have been covering the Kain Colter-led union movement for WildcatReport.

On Friday, April 25, representatives from the National Labor Relations Board (NLRB) will descend upon Evanston to oversee the Northwestern football team's vote on whether to unionize.

No matter the results, it will be a historic event -- and one that probably won't really matter in the grand scheme of things.

Here's the basic breakdown of where we stand, in case you only know Kain Colter as a dual-threat quarterback and not a union leader.

Northwestern football players, somewhat surprisingly, won the right to vote on whether to adopt the College Athletes Players Association (CAPA) as their representative bargaining unit. NLRB regional director Peter Sung Ohr determined that NU scholarship football players were employees of the university, for the purposes of the National Labor Relations Act, because the coaching staff demanded significant portions of their time and exercised great control over their daily actions, and because scholarship funds represented compensation in exchange for services provided.

Northwestern, no doubt chagrined by the outcome, appealed Ohr's decision to the primary NLRB in Washington, D.C. Meanwhile, Ohr's ruling set the stage for the April 25 vote, which will occur before the appeal in D.C., and whose results will be destroyed should the NLRB overturn Ohr's ruling. Should the NLRB, a partisan board currently comprising three Democrats and two Republicans, uphold Ohr's ruling, NU can appeal again -- this time to the federal courts and perhaps eventually to the Supreme Court. Nonetheless, if the ruling stands, then the player vote will be revealed, and we will learn once and for all whether CAPA will represent the Northwestern scholarship football players in collective bargaining.

Got it? Good. Because the singular relevance of this one vote will likely be a footnote in the history. It is but one ripple in a growing wave of issues that could alter the college sports landscape.

For one, if quarterback Trevor Siemian's remarks are any indication, Northwestern players could easily reject CAPA's representation. Head coach Pat Fitzgerald and NU's administration are are pulling out all the stops to defeat the union effort. Some players will surely be politically opposed to union representation. Some see it as an attack on the program and would prefer to fight issues with the NCAA, not with Northwestern. And some may wish to avoid the hullabaloo that has already arisen over the unionization efforts.

Even if the Wildcats do not form a bargaining unit, Ohr's ruling would still stand and apply to the other private university programs in Division I -- Notre Dame, USC, Stanford and Miami (Fla.) among them. Perhaps players at the other private institutions feel differently about the prospect of unionizing; they would be free to repeat the process the NU players have already undergone, signing union cards and petitioning their local division of the NLRB to permit a union vote.

Perhaps more importantly, Ohr's decision set off a firestorm of reaction from all parties -- ranging from NCAA president Mark Emmert to prominent athletic directors and coaches to state legislatures. The states of Ohio and Connecticut quickly proposed or contemplated bills that would determine the employment status of college football players. (It should be unsurprising that the state home to eight Division I football teams acted differently than the state with just one.)

The reason for Connecticut's action was clear. NCAA basketball tournament darling Shabazz Napier, the all-everything guard from the national champion UConn Huskies, made waves earlier this month when he told reporters that he sometimes went to bed "starving" because he could not afford to eat after the fabled training table was no longer available. In a rare moment of clarity, the NCAA quickly approved an unlimited meal allowance for all Division I college athletes, regardless of scholarship status or revenue produced. The catch: one more round of approval is necessary, this time from the NCAA board of directors. Their meeting date? Today, April 24, the day before Northwestern's football team will decide if they want CAPA to represent their interests.

The irony with the NCAA's decision is that it reflects the same basic truth: though in this case the decision is beneficent towards athletes, the players had no say one way or the other. Kudos to the NCAA for making a logical choice, but it was still a unilateral call.

And that's where three pending federal lawsuits at various stages of the proceedings are set to truly shape the future of the NCAA. Representatives in O'Bannon v. NCAA, the suit from former UCLA basketball star Ed O'Bannon seeking damages for the unlicensed use of his likeness in NCAA-approved video games, yesterday told CBSSports.com that the case would head to trial in June after court-ordered mediation sessions in March failed to produce any substantive results. As O'Bannon represents a class of former NCAA athletes, the revenue the NCAA may owe to the class could number in the billions of dollars, according to the CBSSports.com report.

On O'Bannon's heels are two other antitrust lawsuits, Alston v. NCAA and Jenkins v. NCAA, both levying charges that the NCAA and the major conferences illegally acted in concert to stifle competition, both laying out arguments that the NCAA profiteered off of college athletes while artificially capping the value of athletic scholarships. The two latter lawsuits include current players.

In an age where individual schools are signing $150 million dollar multimedia deals on top of selling tickets, apparel, food and TV rights, the damages could be staggering. And then, as with all antitrust claims, should the court find the NCAA liable for antitrust injuries, the damages would be tripled.

Beyond the antitrust world, the NCAA is also facing heat from former athletes suffering from concussions and their aftereffects, with 12 lawsuits compiled into one large suit against the NCAA and other defendants to determine if former NCAA players are entitled to damages from permanent long-term effects of concussions suffered during NCAA-sanctioned activities. According to AL.com, at least 65 different players have sued the NCAA in various jurisdictions for concussion liability.

What does this morass of lawsuits have to do with Northwestern? For one thing, antitrust lawsuits differ from tort lawsuits, like the concussion litigation, and those differ from administrative rulings like the NLRB is set to make on NU's appeal. These represent part of the universe of attacks against the status quo, which will force the NCAA to adjust if it wants to survive.

Perhaps the Northwestern football team will end up voting to unionize, and perhaps it won't. But the NCAA is under fire from all directions, and the union is just one small part of it.

Perry Gattegno practices intellectual property, media and business law in Chicago. He is a graduate of Northwestern University's Medill School of Journalism. George Stowe is a law student at Northwestern University and graduated from the Weinberg College of Arts and Sciences at Northwestern. Perry can be reached at perry@fklawfirm.com.

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