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Why the Northwestern union vote may not mean much

Members of the Northwestern University football team will vote Friday on whether to form a union, but it will likely take months before the results are known, and developments this week make the outcome probably less important than a separate decision from the National Labor Relations Board in Washington.

On Thursday, the national NLRB office opted to review a March decision from the Chicago NLRB office that greenlighted Friday's vote. But the national NLRB decision likely won't come for months, and the results of the Northwestern players' vote on Friday won't be revealed until then.

Kain Colter, No. 2 of the Northwestern Wildcats, passes against the Syracuse Orange at Ryan Field in September 2013 in Evanston, Ill.
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Kain Colter, No. 2 of the Northwestern Wildcats, passes against the Syracuse Orange at Ryan Field in September 2013 in Evanston, Ill.

"Because the national board chose to review the Chicago NLRB ruling, that's going to be the key to all this," said David Hollander, professor of hospitality, tourism and sports management at New York University.

"If the board decides to uphold the ruling that student-athletes in the football program are employees, then it opens the gates for payment and union votes in colleges regardless of how the Northwestern players vote," he said.

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If the national NLRB decides that student-athletes are not employees, Hollander said it would be a setback to efforts to classify student-athletes as workers, but not an end in itself.

"I think there will be other efforts ahead," Hollander argued. "The college sports system is broken and needs to get fixed."

It was in late March that the Chicago regional director of the National Labor Relations Board ruled that the Northwestern football players were employees of the university and could vote to have union representation. (The decision dealt with private universities only.)

In that ruling, the NLRB's regional director, Peter Ohr, said that many of the football players receive scholarships worth about $61,000 per year and spend 40-50 hours a week during the regular season involved in football activities as well as games. That makes them employees, he wrote.

The action to form a union came from former team quarterback Kain Colter, who graduated in March, and Ramogi Huma, president of the College Athletes Players Association (CAPA) and a former UCLA football player. (Colter is a co-founder of CAPA.)

Northwestern University officials challenged the ruling with the NLRB in Washington, which just decided Thursday to review the decision. The university is arguing that scholarship players on the football team are not to be considered employees under the National Labor Relations Act.

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Speaking to CNBC by phone last month, Huma said he would carry the fight over the union vote to Washington if the NLRB there took up the appeal.

But It could take months before any ruling by the national NLRB is made. Meanwhile, the votes of Northwestern players over whether to unionize will be sealed until that decision. It will take a majority of the 76 scholarship players to decide either way.

Several reports indicated that players were likely vote against a union. The coach of the team, Pat Fitzgerald, has urged the players to vote no.

Bigger case ahead

The NCAA, the governing body of college athletics, opposes efforts to unionize college athletes. In an email response to CNBC in March, the organization said, "The NCAA is not a party to the proceeding, but it is our hope that after reviewing the record, the NLRB will agree with Northwestern that student-athletes are first and foremost students of the university, not employees."

Besides the Northwestern vote, the NCAA has its hands full with two antitrust cases. However, the biggest one, according to experts, is the suit that seeks compensation for using the likeness of college athletes on such items as DVDs, photos, video games and rebroadcasts of games on TV.

That case, filed in 2009 by former UCLA basketball player Ed O'Bannon, is scheduled to go to trial in June, and could have even more impact than the NLRB ruling, said Mark Conrad, professor of sports law at Fordham University.

(Other defendants in the suit, Electronic Arts and the Collegiate Licensing Co. reached an undisclosed financial settlement with O'Bannon last September that is likely to include some compensation to former college players, according to reports.)

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"The O'Bannon case can blow this whole student-athlete classification out of the water by basically blowing up the NCAA," he said. "Whatever happens, the fight to pay student-athletes will not be going away."

—By CNBC's Mark Koba.

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