NLRB Finds Northwestern Football Players 'Employees,' Permitted to Unionize

Author: Melissa Gonzalez Boyce, XpertHR Legal Editor

March 28, 2014

In a decision that may have widespread implications for college sports, a Regional Director for the National Labor Relations Board (NLRB) has determined that Northwestern University football players receiving scholarships are "employees" under the National Labor Relations Act (NLRA). As a result, the Regional Director directed an election to be conducted so that "all football players who receive football grant-in-aid scholarship and not having exhausted their playing eligibility" at Northwestern can vote whether they want to be represented by a union.

This landmark determination by the NLRB is startling to many as the petition filed by the College Athletes Players Association on January 28 was seen as a longshot. Northwestern University, having the burden to justify that those football players who receive scholarships are not "employees", argued that they are instead students or, in the alternative, temporary employees who are not eligible to vote in a union election.

In response, the Regional Director highlighted several aspects of the university-player relationship to demonstrate how Northwestern indeed receives a benefit from the services provided by the football players, provides compensation for services provided by the football players and exerts control in the performance of the player's duties as football players - all factors in determining "employee" status. For instance, the Regional Director recognized that, as a result of the services provided by the football players, Northwestern's football program benefited by generating approximately $235 million in revenue between 2003 and 2012, in addition to any positive impact to the university's reputation a winning football season may have had on donations and increases in applicants.

In return, the Regional Director noted that 85 of the 112 Northwestern football players receive an economic benefit in the form of a scholarship, which includes tuition, fees, room, board, and books for up to 5 years. As stated in the decision:

Notably, the Regional Director also determined that the "tender" each scholarship player has to sign at the beginning of each scholarship period, which details the duration and conditions under which the compensation will be paid to them, serves as an "employment contract".

Additionally, the Regional Director found that the scholarship players "are under strict and exacting control by [the coaches] throughout the entire year." For example, the coaches prepare and provide daily itineraries for the players that detail the football-related activities the players are to engage in during the 50- to 60-hour-week training camps as well as the 40- to 50-hour weeks during the regular football season. Moreover, the coaches "have control over nearly every aspect of the players' private lives by virtue of the fact that there are many rules that [the football players] must follow under threat of discipline and/or the loss of a scholarship." For instance, the coaches may restrict and/or have to approve of a player's living arrangement, outside employment, personal car, off-campus travel, internet activity, media speaking engagements, alcohol and drug use and gambling activity.

As a result of all of these factors, the Regional Director concluded that the scholarship football players are "employees" under the NLRA because they provide services to Northwestern University "under a contract for hire in return for compensation [and] are subject to [Northwestern's] control." The Regional Director, however, dismissed Northwestern's argument that if the players are to be deemed "employees" then they are then "temporary" and not eligible to vote in a union election by ruling that the players generally remain on the team for four to five years and the NLRB has never applied the term "temporary" to those whose employment might last from three to seven years.

In a statement issued in response to the decision, Alan Cubbage, spokesperson for Northwestern University, states that the school is "disappointed" and vows to appeal the decision to the full board of the NLRB in Washington, D.C.

It is important to note that this ruling by the Regional Director is not final and may be appealed to the NLRB by April 9. If the full board of the NLRB agrees with the conclusion that the scholarship football players are "indeed" employees, then the players may then proceed with the union election. In the event the players vote to unionize, Northwestern may then refuse to bargain with the union and, upon the filing of an unfair labor practice charge (ULP) with the NLRB, challenge the NLRB's determination during the ULP proceeding.