College Athletes and Unions: A First Strike from the NLRB

by Dorsey & Whitney LLP
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On March 26, the Chicago Region of the National Labor Relations Board (the “NLRB” or the “Board”) decided that college football players at Northwestern University not only are “employees” but also are entitled to form a labor union. See Northwestern University, Case No. 13-RC-121359 (March 26, 2014).

According to the NLRB’s Regional Director in Chicago, students who receive scholarship funds from a private university for playing football are not just students. They are actually employed by that university, and are therefore entitled to exercise the full panoply of unionization rights in the National Labor Relations Act (the “NLRA” or the “Act”).

Northwestern now has filed its own appeal of this decision with the NLRB in Washington, D.C. stating that this is an “unprecedented decision” which may “alter the underlying premise upon which collegiate varsity sports is based” and therefore must be overturned. See, Northwestern’s Request for Review filed April 9, 2014. The NLRB now must decide if the case will go forward and whether the student-athletes at Northwestern ultimately can end up having their own union representative.

This ground-breaking case has the potential to cause major changes in the relationship between student athletes and universities. It will be both a highly controversial and continually developing topic for years to come.

The Legal Journey Ahead

Commentators are grappling with this groundbreaking decision from many angles. Some frame it as the latest entry into the debate about whether college football players should receive some portion of the multi-million dollar enterprise their exploits support. Others describe the decision as a reaction to the debate about how to address head trauma and other serious chronic conditions caused by a lifetime of playing football.

The Process Toward Unionization

In terms of the union issue itself, the NLRB process always involves two separate and distinct steps, although both often start going forward at the same time.

  • The first step is the legal review process being conducted by the NLRB in Washington, D.C. as a result of Northwestern’s appeal as to whether student-athletes legally can be considered as “employees”; and
  • The second step is to have a secret ballot union election conducted by the NLRB for the Northwestern football players to vote on whether they actually want to have union representation.

The union vote is set right now for April 25, but the vote could be delayed or the votes impounded and not counted until the full NLRB later rules on the issue of whether student-athletes actually can be “employees” eligible to vote in a union election. If the NLRB ultimately rules in favor of “employee” status but the union loses the NLRB vote whenever the votes are counted, that would end the legal process right there.

They Need the Vote…and Longevity

Only if the Northwestern players vote for the union would there ever be any possibility of actual bargaining for a union contract on the players’ behalf. The players’ bargaining demands are expected to cover the two more pressing issues that the NCAA and college administrators need to begin addressing anyway:

  • Better ongoing and future medical coverage for player injuries; and
  • A potential increase in monthly living expense payment for players’ basic living costs.

For current players, however, the very likely reality is that only a small portion of them would still be at their school and playing in their sport by the time any actual union bargaining realistically would start, and that itself would require the union position to win at every step. That is because, even if the NLRB vote is finalized and the union wins, there almost certainly would be another round of NLRB appeals, and then after that the federal courts, including possibly the U.S. Supreme Court, would become involved. This legal process from right now until its conclusion very likely would take from 2 to 3 years, which in college athletics terms is close to a complete turnover of team players in almost every sport.

A Preview into the Future

This NLRB decision may be a precursor to more than just its immediate issue of whether private university football players can unionize. If this NLRB decision stands, it has the ability to fundamentally alter the relationship between college football players – and perhaps all college athletes who receive scholarships for their athletic skills – and their universities. It certainly would appear to equally apply to other sports such as basketball, hockey and baseball that are more likely to generate revenues. Whether it will lead to “employee” status and possible unionization in any women’s sports besides basketball, or even in many Division I, II or III college sports which are non-revenue producers, is at best an open question. However, unless the NLRB Region’s decision excluding “walk-on” players is changed, colleges which do not provide athletic scholarships for some or all of their athletic teams would not appear to be subject to potential unionization in those non-scholarship sports.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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