Volume 161, No. 166

BY JACK SILVERSTEINLaw Bulletin staff writer

One vote.As he prepared to

make his case beforethe five-memberNational Labor

Relations Board, Joseph E.Tilson hoped he could flip justone Democratic member to earna historic labor victory for hisclient, Northwestern University.Along with fellow Cozen,

O’Connor LLP attorneys Alex V.Barbour, Annaeliese Wermuth,Jeremy J. Glenn and in-houseattorneys from Northwestern,Tilson — the firm’s labor andemployment department co-chair — represented the univer-sity in its battle against footballplayers trying to unionize.Last year, Chicago-based

NLRB Regional Director Peter S.Ohr ruled that scholarshipplayers were employees of theuniversity, granting them theright to unionize. The school’s 76scholarship players voted inApril 2014 in a secret ballot.Before the results could be

announced, Northwestern tookthe fight up the NLRB ladder.Tilson expected support fromthe board’s two Republicanmembers.His fingers were crossed for

one of the three Democrats tocross the aisle to create amajority.Instead, the vote in North -

western’s favor was unanimous.“We had a glimmer of hope

that perhaps we could get onevote to tip the balance,” Tilsonsaid. “But a unanimous decisionwas beyond our reasonableexpectations.” In this interview with the Daily

Law Bulletin, condensed forspace, Tilson discusses thecombination this year betweenhis former firm — Meckler,Bulger, Tilson, Marick & PearsonLLP — and his current one,explains the Northwestern rulingfrom his vantage point and offersa vision of how a unionizedWildcats team could have spelledchaos for college athletics.

Law Bulletin: In April, after21 years, you and most of MBTdecided to join Cozen, O’Connor.Your longtime partner Bruce R.Meckler told the Daily LawBulletin that “the future is forlaw firms to have much largernational footprints.” Is that the right move for all

attorneys in shops like MBT? Joseph Tilson: It certainly is

the right move for labor andemployment lawyers, wherethere’s been a tremendous trendtoward establishing a national

footprint. Many clients see thevalue of having people on theground throughout the countryto better service their needs on anational basis.We felt that this move elimi-

nated any competitive disadvan-tage that we had with othernational firms in our space andenables us to not only offer laborand employment services aroundthe country but also to offer thefull range of services of a full-service firm like ours — such ascorporate transactional services,IP services and the like.

LB: How has the move workedout so far?

Tilson: It has been terrific. Atthis point, we have alreadystarted to work together withour labor- and employment-lawattorneys around the country tocollaborate on cases in theirgeographical areas.We recently had a retreat

where we brought in all 50lawyers from around the country.Everyone has been extremelywelcoming to our group and veryanxious to work together.There clearly is a lot of

synergy between our offices. Wecame in with a lot of commonclients and we’ve been able toexpand our relationships withour existing clients alreadybecause of the additionalresources and geographic reach.

LB: Last week you told me youwere “on cloud nine” after theNLRB ruled in favor of yourclient, Northwestern University,and decided not to assert juris-diction in the football unioniza-tion case.How did you get here from last

year when the regional directorruled that the students wereindeed employees?

Tilson: In our briefs to theNLRB in Washington, we argued

Copyright © 2015 Law Bulletin Publishing Company. All rights reserved. Reprinted with permission from Law Bulletin Publishing Company.

Labor attorney Tilsondiscusses big win onbehalf of Northwesternin players’ union case

CHICAGOLAWBULLETIN.COM TUESDAY, AUGUST 25, 2015

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Avoiding college football ‘chaos’

Joseph E. Tilson, co-managing partner of the Chicago office of Cozen, O’Connor LLP, representedNorthwestern University in its victory last week before the National Labor Relations Board, whichruled in the school’s favor in a dispute over whether NU football could form a union. Ralph Greenslade

vehemently that public policyconsiderations dictated that theydecline to exercise jurisdiction inthis case quite apart from theemployee issue — that assertingjurisdiction here would lead tochaos in college sports.We pointed out that there was

no precedent in professionalsports to have a union relation-ship with a single team. In everysituation, the entire league wasunionized as part of the samebargaining unit, because negoti-ating with only one team wouldcreate competitive imbalances.In the context of college sports,

that would be impossible becausepublic universities are governedby individual state labor lawswhich vary widely from state tostate, whereas private schoolsare governed by federal law andthere are only 17 private schoolsamong the Division 1 (FootballBowl Subdivision) teams.

LB: Your team came up withthe “assert jurisdiction”argument. Where did that comefrom?

Tilson: It was a total teameffort. … We all felt that theboard members could relate tothe chaos that the regionaldirector’s ruling would create ifwe focused on the practicalrealities of having a unionrepresent a single Northwesternteam. And actually, just a subsetof the team — the scholarshipfootball players.There is limited precedent

where the board has declinedjurisdiction. For example, thehorse-racing industry. We feltthat this would provide a path forthe board to dodge the emotion-ally and politically chargedemployee issue. And we werethrilled that it actually worked.

LB: Should the NLRB betrying to dodge tough issues?

Tilson: In this particular case,there was no hope that theycould get a consensus on thatissue and at the same time reachthe right result. So I actuallythink that it was a brilliantsolution on their part.

LB: And, kind of, on yourteam’s part.

Tilson: Correct.LB: Let’s say it went the other

way and Northwestern’s teamcould unionize. What chaoswould there really be?

Tilson:Well, first of all, I don’tthink that the union would havewon the vote even if the NLRBwould have come out the otherway, based upon all of thereports that I have heard.But if, hypothetically, the

union were successful in union-izing the football team, there

could be all sorts of disputessuch as grievances over playingtime, grievances over practiceschedules, potential strikes thatcould result in the cancellation ofgames by an individual team.And you also have to appre-

ciate the fact that only part ofthe team was deemed eligible tounionize — that is, the scholar-ship athletes.Therefore you would have a

team that was made up of unionmembers and non-unionmembers playing side by side onthe same line. It really, to my wayof thinking, would have resultedin absurd consequences.

LB: Like what? Tilson: There could be, for

example, a work stoppage rightbefore a bowl game that wouldmean that Northwestern wouldnot be able to field a team. Therewould be a lot of angry fans.I’d add that the union would

likely demand in negotiationscompensation and benefits thatwould violate NCAA rules andpreclude them from competingin NCAA-sponsored eventsdespite assurances made by theunion at the NLRB hearing inthis case.

LB: Regarding the workstoppages though, how is thatdifferent than the countless workstoppages in professional sports?

Tilson: In professional sports,if there’s a work stoppage, itaffects the entire league. Here,you’d have work stoppages thatwould only affect individualteams that happen to beunionized. This could happensporadically and intermittently,all of which would lead to chaoticresults.

LB: But whether it’s sporadicor leaguewide, what’s the differ-ence? You’re still bothering fansand disrupting the product.

Tilson: If it’s a leaguewidework stoppage, that can bepredicted and other arrange-ments can be made. But whereyou have individual teams goingoff on their own, it could happenany time, anywhere, withoutnotice or planning.

LB: I assume you don’t thinkcollege football players areuniversity employees.

Tilson: That is correct.Absolutely not.

LB: So do you think collegeathletes should be compensatedwith a piece of the NCAA’s nearlybillion-dollar-a-year pie?

Tilson:Whether collegeathletes should be compensatedmore than they are today isreally a totally separate issue.There has already been amovement to increase the

amount of scholarships andbenefits available to student-athletes by the NCAA and thepower conferences, where thefootball program is particularlyprofitable.But you have to bear in mind

that in many schools even withvery successful footballprograms, the overall athleticdepartment continues to besubsidized by the university.And the notion that college

athletics is in general a cash cowat the majority of schools — evenDivision 1 schools — is simplynot true.The football programs often

subsidize other non-revenue-producing sports. And I firmlybelieve that college sports arepart of the overall educationalprocess.

LB: You’re talking about schol-arships and benefits, but I’masking if players should get apiece of the revenue pie that theyhelp create. Thoughts?

Tilson: I think that the valueof a scholarship at an institution

like Northwestern is priceless.And Northwestern, unlike manyschools, graduates the vastmajority of their football players.So I do think that the footballplayers are treated very fairly atNorthwestern.

LB: But plenty of non-footballplayers get scholarships withoutcontributing to a billion-dollarindustry.

Tilson: As I mentioned to youpreviously, the overall athleticprogram, which is a criticalcomponent of the educationalprocess, continues to be subsi-dized by the university, notwith-standing the money generated bythe football team.

LB: But the NLRB made thepoint in its ruling that collegesports are separate from theacademic curriculum.

Tilson: Student-athletesunquestionably learn life lessonsby participating in intercolle-giate sports that make them, as agroup, more successful in theircareers and in life. Studies haveshown that they tend to be moresuccessful in their careersbecause of the discipline andteamwork that they learnthrough the rigors of highlycompetitive collegiate sports.And I can tell you as an

employer that when I see aresume that includes participa-tion in Division 1 athletics, thatresume goes to the top of the pile.

LB:Where do you expect thiscase to go from here?

Tilson: I believe that theconcept of unionizing studentathletes is pretty much dead as aresult of this ruling — certainlyamong private schools. It iscertainly conceivable thatcertain state agencies or courtsthat are not bound by federalprecedent could rule differently.But quite frankly, I would be

surprised to see that happen inthe near future.

LB: So what else in yourcareer are you most proud of?Because this Northwestern caseis such a huge win.

Tilson: I’m very proud ofbeing elected the vice chair —soon to be chair — of the ABAlabor and employment section,which includes more than 20,000members nationwide.The ABA has provided me

with another dimension to mypractice that has enabled me togrow professionally and establishgreat friendships and contactswith other leading labor andemployment lawyers around thecountry and around the world.And it has been a tremen-

dously rewarding experience.jsilverstein@lbpc.com

Copyright © 2015 Law Bulletin Publishing Company. All rights reserved. Reprinted with permission from Law Bulletin Publishing Company.

Joseph E. TilsonCo-managing Partner, Cozen,O’Connor LLP’s Chicago office

• Lawyers in Chicago: 57• Age: 59• Law school: University ofMichigan Law School, 1979

• Organizations: Vice chair ofthe American BarAssociation’s Section on Laborand Employment Law; vicechair on the Board ofManagers of the YMCA ofMetropolitan Chicago; chair-elect of the Wage & HourDefense Institute

• Interests: Spending timewith his five children,including watching his sonCharlie play minor leaguebaseball and son Will sing theblues