This past Wednesday, Peter S. Ohr, the National Labor Relations Board (NLRB) Regional Director in Chicago, ruled that all scholarship football players at Northwestern University who have not exhausted their college eligibility are “employees” under the National Labor Relations Act (NLRA). Based on that determination, he scheduled an election to allow 85 players to determine whether they want the College Athletes Players Association (CAPA) to serve as their exclusive bargaining agent. We originally highlighted this story in a blog entry dated January 31, after the players, with the assistance of CAPA and the financial backing of the United Steelworkers, originally filed their petition with the NLRB.
In determining that Northwestern's grant-in-aid scholarship players met the statutory definition for "employees," Ohr's 24-page decision concentrated on the pervasive 24/7 control that the team's coaching staff has over players' lives. He outlined a detailed description of practice schedules, workout requirements and coaches' supervision, concluding:
[T]he coaches have control over nearly every aspect of the players’ private lives by virtue of the fact that there are many rules that they must follow under threat of discipline and/or the loss of a scholarship. The players have restrictions placed on them and/or have to obtain permission from the coaches before they can: (1) make their living arrangements; (2) apply for outside employment; (3) drive personal vehicles; (4) travel off campus; (5) post items on the Internet; (6) speak to the media; (7) use alcohol and drugs; and (8) engage in gambling. The fact that some of these rules are put in place to protect the players and the Employer from running afoul of NCAA rules does not detract from the amount of control the coaches exert over the players’ daily lives.
In Ohr's view, this level of control far exceeds the kind of control a school customarily has over a student. As part of his analysis, he distinguished the circumstances involving Northwestern's scholarship athletes from a set of graduate students at Brown University whose efforts at unionization were rebuffed by the NLRB in 2004. In Brown University, 342 NLRB 483 (2004), the NLRB determined that graduate assistants were not “employees” after considering: (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 received to attend Brown. Although Ohr found that statutory test to be inapplicable in connection with Northwestern's scholarship athletes -- because the players’ football-related duties were unrelated to their academic studies -- he reasoned that the outcome would not change even after applying Brown University's four factors. Ultimately, in Ohr's view, “[I]t cannot be said the Employer’s scholarship players are ‘primarily students.’"
Although the NCAA was not a party to the proceeding, its chief legal officer responded to Ohr's decision as follows:
[T]he NCAA is disappointed that the NLRB Region 13 determined the Northwestern football team may vote to be considered university employees. We strongly disagree with the notion that student-athletes are employees.
We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid.
Over the last three years, our member colleges and universities have worked to re-evaluate the current rules. While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college. We want student-athletes – 99 percent of whom will never make it to the professional leagues – focused on what matters most – finding success in the classroom, on the field and in life.
Ohr took great pains, in drafting his decision, to anticipate how his reasoning might be subject to attack on appeal and to preemptively address those issues. If his decision is upheld, it could radically reshape the face of big-time college athletics -- at least at private universities. The NLRB's ruling does not apply to public universities. Scholarship athletes at those institutions are governed by state law and 24 states, many of them located in the South, have right-to-work legislation.
Ohr's decision will certainly be subject to an appeal to the NLRB in Washington, D.C. Northwestern University has until April 9, 2014 to request a review. Additionally, the University said "it will continue to explore all of its legal options in regard to this issue." Although the NCAA and Northwestern contend that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student athletes, if I were the President of Duke, Notre Dame or Stanford, I might begin to gameplan what the future might look like across the bargaining table from my star quarterback and his offensive linemen. Seventeen private universities at the Division I level field college football programs like Northwestern University.