Regional Director to Northwestern Football Players: Go Forth and Vote!

by BakerHostetler
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In a move that has surprised many, but not all, NLRB-watchers and collegiate football fans, Chicago-area NLRB Regional Director Peter Sung Ohr has determined that Northwestern University football players who receive grant-in-aid are employees of the University and an appropriate bargaining unit. Based upon those findings, he has directed an election at some time and place to be determined.[1]

The Regional Director’s written decision addressed three separate arguments raised by the University in opposition to the petition filed by the College Athletes Players Association (“CAPA”), which is seeking to represent the players. Each argument is discussed below.

Football Players are Employees Too.

The University argued that under the NLRB’s decision in Brown University, 342 NLRB 483 (2004), which addressed the employment status of graduate student assistants, the football players are not employees. In perhaps the most interesting aspect of the Regional Director’s decision, he first applied a common law test to reach the conclusion that the football players are, in fact, employees. He concluded that the amount of control exercised by non-academic employees of the University, specifically the football coach who is not a member of the faculty, was similar to the control exercised by common law employers. Evidence of this control included:

  • The fact that football players are not considered for admission unless and until they are recruited by the head coach;
  • The “tenders,” or contracts, that set forth a host of rules by which players must abide to maintain their scholarships, their “compensation” for the services they provide to the University, and the control exercised by coaches “over nearly every aspect of the players’ private lives” under threat of sanction (i.e., loss of scholarships) if they violate rules or lose their eligibility;
  • The large number of hours devoted to football related activities (40-50 hours per week, during the season, 50-60 hours per week during training camp); and
  • The fact that players under scholarship may not miss practice or games to attend class—a fact that in one instance led a player to alter his educational plans because he was discouraged from pursuing a pre-med curriculum.

The Regional Director also determined that the football players were employees after considering the four factors upon which the NLRB relied in Brown University, (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 the graduate student assistants receive to attend the university.

The Regional Director distinguished the Northwestern University football players from the Brown’s University graduate student assistants on all four counts.[2]

  • The Regional Director determined that although the football players are students, and must be students to be eligible to play football, they are not “primarily students,” largely because of the significant number of hours they devote to football related activities. The Regional Director concluded that “it cannot be said that they are ‘primarily students’ who ‘spend only a limited number of hours performing their athletic duties.’”
  • Next, the Regional Director concluded that Northwestern’s football program does not constitute a “core element” of their education. The football players do not receive any academic credit for playing football, nor are they required to play football in order to obtain their undergraduate degrees. This distinguishes the football players from graduate student assistants who are required to teach to complete their program requirements.
  • Turning to the football players’ relationships with University faculty, the Regional Director also distinguished the circumstances of the football players, on the one hand, and the graduate students in Brown University, on the other hand, because the football program is not directed by faculty members. Thus, the Regional Director determined that allowing the football players to organize would not “‘have a deleterious impact on overall educational decisions.’”
  • Finally, the Regional Director distinguished the financial aid received by Brown University’s graduate students from the grant-in-aid provided to Northwestern’s football players. He found a compelling distinction in the fact that the football players are not offered scholarships unless they plan to play football and they may lose their scholarships if they voluntarily withdraw from the team. In contrast, the graduate students in Brown University received the same compensation as graduate fellows who were not required to teach.

The University argued that if the football players are employees, they are temporary employees due to their limited tenure. Relying on established precedent, including Boston Medical Center, 330 NLRB 152 (1999), the Regional Director fairly readily dispatched that argument.

The Appropriateness of the Bargaining Unit: Who Knew Specialty Healthcare Had Such a Good Arm?

CAPA filed its petition on behalf of football players receiving grant-in-aid only, and the University challenged the appropriateness of the proposed bargaining unit. Relying on the NLRB’s decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83, slip op. at 1 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), the Regional Director found that the University failed to meet its burden of showing that the petitioned-for unit is not appropriate. Specifically, he determined that the walk-on players who are not subject to all of the rigorous requirements to which players receiving scholarships must adhere, do not share an “overwhelming community of interest” with players who do receive grant-in-aid. In particular, they do not face the threat of having lose “up to the equivalent of a quarter million dollars in scholarship” if they do not play football.

CAPA is a Labor Organization Within the Meaning of the NLRA.

The final argument raised by the University was that CAPA is not a labor organization. The University argued that CAPA was not a labor organization within the meaning of the NLRA, unless (a) the football players were employees and (b) the petitioned for unit was an appropriate unit. Having decided these issues against the University, it was a foregone conclusion that the Regional Director would also conclude that CAPA is a labor organization within the meaning of the NLRA.

Conclusion: Wherefore Division I Athletics? Wherefore higher education?

The University has until April 9, 2014, to seek review of the Regional Director’s decision, and it has signaled its intent to do so. Thus, the saga of Northwestern’s football players is not yet over. The Regional Director has not yet set a date and place for the election, likely to give the University time to appeal. Ultimately, this case will be reviewed by a federal appellate court and, potentially, the U.S. Supreme Court.

The Northwestern case is an unprecedented decision that, if allowed to stand, could have ramifications beyond the NLRB context. Certainly, collegiate athletics have faced numerous challenges in recent years, including anti-trust lawsuits, which may be a key plot element in the story. The larger question that looms is what role universities will continue to play in Division I sports and, if the NCAA, or the conferences, or some other body, assumes a larger role, how that will affect Division I universities. So, too, there may be larger questions about the role of universities, and whether inter-collegiate athletics are part of a university and its overall mission, or something distinct from academic life.

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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