NLRB Rules That Scholarship Football Players At Northwestern University Are “Employees” Under The National Labor Relations Act With Right To Unionize; Northwestern Will Appeal

by Franczek Radelet P.C.
Contact

Earlier this week, NLRB Regional Director for Region 13, Peter Sung Ohr, issued a highly publicized decision and ruled that grant-in-aid scholarship football players at Northwestern University are “employees” under the National Labor Relations Act and, as such, have the right to unionize.

While the Regional Director’s decision directs an election to take place, we do not expect that an election will be scheduled until appeals are fully resolved. The parties have until April 9, 2014, to file a Request for Review of the Decision with the NLRB in Washington, D.C. Shortly after the decision was issued, Northwestern publicly confirmed that it plans to appeal the decision.

In determining that the scholarship football players are employees, the Regional Director stated that, in his view, the football players’ primary relationship with the University is economic. He also noted that between 2003 and 2012, the University’s football program generated approximately $235 million in revenue, which Ohr asserted the University was able to use at its discretion. The Regional Director further stated his belief that the evidence established that scholarship football players are recruited by the University because of their “football prowess,” not because of their academic achievement. Ohr characterized the scholarships that the football players receive as “compensation for the athletic services they perform” throughout the year. The Regional Director also described the “tender” that each scholarship player signs to receive his scholarship as an “employment contract” between the player and the University, which sets forth in detail the conditions of the “compensation” that will be provided to him.

Additionally, the Regional Director found that the players are under the University’s “strict and exacting control” throughout the entire year. He noted that football players are expected to adhere to detailed daily itineraries prepared by the coaches that specify “the location, duration, and manner” in which the players carry out their various football duties. Ohr further concluded that, unlike other students, football players are also subject to special rules, restrictions, and policies, including housing restrictions and mandatory study hall if they fail to maintain a certain GPA.

The Regional Director held that the NLRB’s decision in Brown University did not apply because he concluded that, unlike the graduate assistants in Brown, the football players’ football-related duties are unrelated to their academic studies. Even if Brown were applicable, the Regional Director stated that he would still have reached the same outcome. Purportedly applying the four factors outlined in Brown, the Regional Director concluded that the scholarship players are not primarily students, their athletic duties do not constitute a core element of their educational degree requirements, their athletic duties are not supervised by the University’s faculty, and their scholarships are not financial aid. Further, relying upon the NLRB’s decision in Boston Medical Center, in which the NLRB held that medical residents whose training lasts for a finite duration are not excluded from the Act’s coverage as “temporary employees,” the Regional Director held that the football players are covered employees despite only being “employed” by the University for a maximum of four years.

Finally, the Regional Director disagreed with Northwestern’s argument that the petitioned-for-unit of scholarship players is not an appropriate unit. Northwestern argued that walk-on players shared an “overwhelming community of interest” with the scholarship players and should therefore be included in the unit. But the Regional Director ruled that the lack of compensation for walk-on players was a substantial difference between the two groups of players. In making this finding, the Regional Director noted that, unlike the scholarship players, walk-on players do not have the potential to lose a substantial amount of money in scholarships if they stop playing football. Moreover, the Regional Director concluded that walk-on players cannot be considered employees because they do not receive “compensation” in return for playing football.

The issues raised by the Regional Director’s decision are likely to be litigated for years to come.

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.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.