Ruling could impact both private and publicly-held institutions
On March 26, 2014 NLRB Regional Director Peter Sung Ohr found the Northwestern University football players who held scholarships are “employees” and may form a union. A labor association calling itself the “College Athletes Players Association” (CPA) filed a petition for a representational election of the scholarship-holding athletes on the Northwestern University football team. The University challenged the petition arguing that football players are students and not “employees” as defined by the National Labor Relations Act; and, therefore, CPA had no standing to seek to represent them.
Ohr found that those athletes who received scholarships to play football were actually performing football–related services for the University “under a contract for hire in return for compensation” and are, therefore, employees within the meaning of the law.
“While he did not provide any analysis indicating that this holding would be limited to the sport of football, indeed it appears all scholarship athletes — at any educational level, and in any sport — would be entitled to form a union if the ruling is upheld.”
Ohr also found that a scholarship is a transfer of economic value and entails compensation for tuition, fees, room and board, and books for up to five years. The scholarships are conditioned on the student’s observance of school and team rules which require 50-60 hours of weekly time during the training season and 40-50 hours per week during the football season. Ohr contrasted these students with “walk-ons”, or non-scholarship members of the team, who received no scholarship benefits and who had more latitude to miss training or meetings.
Moreover, Ohr concluded that student athletes were not “primarily students” but are employees who spend 40-50 hours per week on football related activities and only 20 hours a week attending class.
Ohr ordered an election among the scholarship athletes to proceed. He permitted the University to seek review with the NLRB until April 9, 2014. Regardless of whether the University seeks review, the Region may conduct the election.
Ohr did not provide any analysis indicating that this holding would be limited to the sport of football. Indeed, it appears all scholarship athletes, at any educational level, and in any sport, would be entitled to form a union if this ruling is upheld. Naturally, employees are entitled to negotiate with employers over all terms and conditions of employment including compensation, benefits, vacation, working conditions, grievance arbitration and their right to strike the employer. Ohr offered no guidance regarding the interaction of the student’s rights under the National Labor Relations Act and their obligations under the NCAA Rules and Regulations.
Ohr did conclude that Northwestern University is a “private” school. This distinguishes the employer from a public, or state-owned, institution. The National Labor Relations Board ordinarily does not seek to assume jurisdiction over public sector employers such as land grant universities. However, in many states, there are laws in existence that permit public sector employees to form unions, negotiate with the employer, and in some states, provide the right to strike. While not mandatory, the state labor relations boards commonly rely upon precedent established by the National Labor Relations Board in interpreting state labor law. This decision could be used as precedent by the states to find that student athletes at public sector institutions are “employees” under state law with the same or similar rights. Further, if a public sector university operates its athletic department under the auspices of a separate corporate entity which is a private corporation, this ruling could have direct impact upon the student athletes in that program.