Game Changer: NLRB Approves Unionization Of Northwestern University Football Players

by Pepper Hamilton LLP

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.


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.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP

Pepper Hamilton LLP 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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 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:

- 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.