Northwestern Football Players Ruled Employees by Labor Board

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 29, 2014

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The National Labor Relations Board (NLRB) in Chicago shook up the college sports world this week by ruling that football players at Northwestern University are legally considered employees, and therefore have the right to unionize.  The NLRB ruling still needs to survive an appeals process, but regardless of what comes, it represents a significant step for student athletes who argue they deserve financial compensation for their contributions to the business of college athletics.

Northwestern Football Players Sue to Unionize

In an effort to get paid for to participate in college athletics, members of Northwestern University’s football team filed the NLRB case to earn a seat at the bargaining table where the National Collegiate Athlete’s Association (NCAA) and Division 1 universities across the country manage the multi-billion dollar college sport business.  Claiming that they dedicated up to 40 – 50 hours a week to football, the Northwestern players sought to assert themselves as employees who are required to work a full time job in the service of their university in exchange for financial aid in the form of scholarships.

Scholarship Football Players are Employees

Northwestern football’s approach was unique – to date players have not asserted themselves as employees – and it proved to be effective.  NLRB Regional Director Peter Sung Ohr relied on a number of factors in determining that scholarship-receiving football players are employees, including:

  1. Scholarship football players perform services for the benefit of Northwestern University, and receive compensation – Northwestern University has reported millions of dollars in earnings per year from its football program, and the players contribute significantly to that profit.  In return, scholarships provide players with tuition, room, board, and various travel and clothing benefits – all considered compensation by the NLRB.
  2. Northwestern exerts significant control over its scholarship athletes: Ohr pointed out that the football program requires athletes to spend anywhere from 40 – 60 hours per week throughout the entire academic year across training, practicing, traveling, and playing football.  Additionally, as conditions of scholarship, players must adhere to a code of conduct strictly enforced by the football program.
  3. Scholarship football players are not “primarily students”:  Again focusing on the time football players are required to spend on athletics, Ohr determined that the team requirements interrupted academic pursuits.  Additionally, scholarship football players were recruited because of their athletic ability, and it is for that reason, not academics, that they are enrolled.
  4. Scholarship requirements do not constitute a core element of their educational degree requirements:  Football players must commit to the team in order to retain their scholarships, but athletic activities do not help them progress towards their academic degree. 

Relying on the separation between football and academics, Director Ohr found that the commitment scholarship level athletes are required to give to Northwestern Football effectively classified them as employees who also happen to attend school in addition to work.  The decision is groundbreaking – no legal official has ever broken through the stranglehold the NCAA and Division 1 universities has on the treatment of football players.

Why Northwestern Football Union Matters

Director Ohr’s decision to allow Northwestern football players to unionize as employees of the university has created a significant ripple effect across the world of collegiate athletics, and parties on both sides of the aisle face an uncertain future.  Although Ohr’s decision must still survive an appeal, its ramifications are far ranging, and include:

  • Of significant concern to university athletic departments, players, as employees, can join a union and go on strike. A strike by disgruntled football players would likely demand compensation beyond scholarship aid, which would cut deep into university profits.
  • Smaller Division 1 schools may choose to cut scholarships, cut football programs, or compete at lower levels.  Before the ruling was issued, Northwestern president Henry Bienen cautioned that the university would consider withdrawing from Division 1 sports rather than engage in collective bargaining discussions with unionized players.
  • Players would receive federal and state employee benefits, including workers compensation.  Being allowed to form a union is not the only benefit to being classified as employees, and should Ohr’s ruling hold up on appeal, players would be permitted to pursue a number of other benefits employees are owed.
  • Players may be entitled to retain rights over their names and likeness used by their universities and the NCAA when promoting ticket sales or video games.

Northwestern officials, and other university presidents, have expressed disappointment with the path that the football players have chosen to take.  Although many sympathize with the issues presented during the course of the NLRB hearing, there appears to be a general sentiment against treating students as employees, in large part due to the potentially serious consequences.

NCAA Treatment of Student Athletes Going Forward

Regardless of whether or not Ohr’s ruling holds up on appeal, a process that could take years, the veneer of college athletics is rapidly eroding.  In addition to the NLRB claim, the NCAA faces two additional lawsuits by players seeking payment, both of which could further expose a disconnect between what the NCAA claims and what actually occurs.  For years the NCAA and Division 1 universities have made significant profits without adequately compensating student athletes, but the recent victories for advocates of players’ rights seem to be carrying college athletics into uncharted waters.

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