Game Changer: NLRB Approves Unionization Of Northwestern University Football Players

by Pepper Hamilton LLP
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On Wednesday, March 26, 2014, the National Labor Relations Board (NLRB) issued a ruling that could potentially change the landscape of college football and other collegiate sports when the Regional Director of the Chicago Regional Office (Region 13) Peter Sung Ohr decided that football players receiving scholarships at Northwestern University were “employees” within the meaning of the National Labor Relations Act (NLRA) and could choose to be represented by the College Athletes Players Association for collective bargaining purposes. Northwestern University and College Athletes Players Association (CAPA), Case No. 13-RC-121359. Northwestern has stated that it intends to appeal the decision to the NLRB in Washington, D.C.

In his 24-page opinion, Ohr devoted a significant amount of detail to the ins-and-outs of the Northwestern football program, including the specifics of the football players’ athletic schedule (40 to 50 hours per week of football-related activities during the regular season), the economic relationship between the football players and the university in the form of scholarships, as well as information and testimony evidencing the coaches’ and the university’s control over the players. After evaluating Northwestern’s football program, Ohr determined that the players were “employees” under the NLRA.

Ohr distinguished the NLRB’s 2004 decision in Brown University, 342 N.L.R.B. 483 (2004), where it held that graduate assistants were not “employees” under the NLRA. In Brown University, the NLRB found that graduate assistants were not “employees” after considering four factors: (1) the status of graduate assistants as students; (2) the role of the graduate student assistantships in graduate education; (3) the graduate student assistants’ relationship with the faculty; and (4) the financial support they receive to attend Brown University. In applying these factors, the NLRB in Brown University concluded that the overall relationship between the graduate assistants and their university was primarily an educational one, rather than an economic one. Ohr in the Northwestern case held that Brown University’s four-factor test was not applicable to Northwestern University “because the players’ football-related duties are unrelated to their academic studies unlike the graduate assistants whose teaching and research duties were inextricably related to their graduate degree requirements.” He then went on to analyze the Brown University factors and concluded that even if these factors applied, it would not change the ultimate conclusion.

The Regional Director’s Analysis of the Brown University Factors

Ohr held that under the first Brown University factor – the status of graduate students as assistants – scholarship football players were not primarily students because they spent 50 to 60 hours per week on their football duties during a one-month training camp before the start of the academic year and an additional 40 to 50 hours per week on those duties during the three- or four-month football season, which is more hours than the players spend on their studies and more than many full-time employees work at their job. In contrast, the Brown University graduate students spent limited hours performing graduate student duties and the majority of their time on educational studies.

Ohr held that the second Brown University factor – the role of the graduate student assistantships in graduate education – was not applicable to Northwestern University football players because unlike in Brown University, where the graduate assistants received both academic credit for performing duties and these duties were required for completion of their graduate degree, the football players did not receive any academic credit for playing football and they were not required to play football to obtain an undergraduate degree.

Ohr held that the third Brown University factor – the graduate student assistants’ relationship with the faculty – was also inapplicable because whereas a faculty member oversaw the work of a graduate student, the football players’ athletic duties are supervised by the football coaches who are not members of the academic faculty.

Finally, Ohr held that the fourth Brown University factor – the financial support they receive to attend Brown University – supported a finding that the players were “employees” because, unlike the graduate students, Northwestern did not offer a scholarship to a prospective student unless they intended to provide athletic service to Northwestern, whereas in Brown University, the graduate assistant’s compensation was financial aid to attend the university, not pay for services performed.1

As a result of his decision, Ohr directed that a secret-ballot election take place where all football players receiving football grant-in-aid scholarships who have not exhausted their playing eligibility are eligible to vote on whether they desire to be represented by the College Athletes Players Association for collective bargaining purposes.

This groundbreaking decision may change the landscape not only for college football programs, but intercollegiate athletics as a whole. If this decision is upheld by the NLRB, it will have a tremendous impact on how universities structure their sports programs. It is unlikely, however, that the battle is anywhere near over. A decision by the NLRB is likely to be appealed to the Court of Appeals. Colleges and universities should stay tuned for the impending appeals process, which could take years before the issue is resolved.

ENDNOTE

1. Ohr also rejected the university’s argument that the players were temporary employees and should be excluded from the bargaining unit, noting that although the players’ employment is for a finite period (four or five years), given the substantial length of time, it cannot be considered temporary.

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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