Football Player ImageLast year, in what was lauded as a potentially game changing decision (pun intended), Peter Sung Ohr, the Regional Director of Region 13 of the National Labor Relations Board (NLRB or Board) ruled that the grant-in-aid scholarship football players at Northwestern University were “employees” of the university within the meaning of Section 2(3) of the National Labor Relations Act (NLRA) and were entitled to seek union representation for the purpose of collective bargaining. The unprecedented ruling was quickly appealed by Northwestern, who argued that the Regional Director’s decision undermined the very premise of collegiate varsity sports and ignored the necessary distinction between amateur and professional sports. Northwestern emphasized that the Regional Director’s decision did not give proper weight to the public policy ramifications and practical consequences of classifying college athletes as “employees” under the NLRA.

In a long-awaited decision issued on August 17, 2015, the five-member Board evoked its broad discretion and unanimously declined to assert jurisdiction over the football players and dismissed the petition, punting the question of whether the players are “employees” who therefore have the right to form or join a union.

Longstanding Rivalry

The line between employee and student athlete has long been blurred—and in recent years National Collegiate Athletic Association (NCAA) student athletes have made headlines for their off the field complaints about “workplace” conditions. More specifically, student athletes have argued that they should be compensated for their services—like any other employee—especially in light of the $6 billion dollars made annually by the NCAA off of college sports and the control that the respective schools and the NCAA exercises over the athletes’ schedules and “workplace”.

The Starting Line-Up

Led by Quarterback Kain Colter, on January 28, 2014, Northwestern’s 85 scholarship football players filed a representation petition with the NLRB, seeking representation by the College Athletes Players Association (CAPA).

  • CAPA—established in January of 2014—is led by current and former college athletes and has taken up causes of student athletes throughout the NCAA with the stated purpose of reforming the NCAA and advocating for the rights of student athletes.
  • Northwestern, home of the Wildcats, is one of over 120 Division 1 football teams and a member of the Big Ten Conference. For fiscal year ending June 30, 2012 the Big Ten generated more than $315 million in revenue. During that same time period (i.e., the 2012-2013 academic year) Northwestern’s football program generated a reported $30.1 million in revenue.
  • Only scholarship athletes—as distinguished from walk-on athletes—were within the proposed bargaining unit, because Regional Director Ohr made clear that walk-ons do not meet the definition of “employee” because walk-ons did not enter into any type of employment contract with Northwestern, maintained more flexibility and control over their workout and school schedules and did not receive compensation for their services.

Throughout their campaign for union representation, the Northwestern players have stated that they need the power and tools of collective bargaining to effectuate comprehensive reforms, which include:

  • Repeal or revision of various NCAA policies which prohibit student athletes from receiving compensation for commercial sponsorships.
  • Guaranteed insurance coverage for players, both current and former, for sports-related medical expenses resulting from injuries sustained while competing as an NCAA athlete.
  • Implementation of more stringent and standardized safety rules and concussion protocols to minimize sports-related traumatic brain injury.
  • Increased athletic scholarship amounts in light of the players’ inability to obtain or retain employment due to mandated practice and competition schedules.
  • Increased focus on the academic success of student athletes for the express purpose of improving graduation rates.
  • Formalized disciplinary procedure and guaranteed due process rights to ensure consistent application of the NCAA’s rules across all campuses.

The NLRB Punts

Northwestern’s appeal placed the express question of a student athlete’s status as an employee squarely before the Board because if the student athletes are not statutory employees, the Board lacks authority to direct an election or certify CAPA as the bargaining representative of the players. Rather than grapple with whether student athletes should be classified as employees, the Board exercised its broad statutory authority to decline jurisdiction on the basis that asserting jurisdiction over the Northwestern football players would not promote stability in labor relations. In support of this conclusion, the Board made the following significant findings—which will likely be relied upon by colleges and universities opposing any future efforts of college athletes to unionize:

  1. Disruption to the Direct Interaction and Cooperation between NCAA Academic Institutions. Relying on previous board decisions regarding the need for the unified operation of professional sports leagues, the Board concluded that the interconnected nature of NCAA teams means that labor issues that directly involve only an individual team and its players would have a direct impact and effect on the NCAA as a whole and the other member institutions. Therefore, individual team bargaining is problematic.
  2. Lack of Jurisdiction Over Public Colleges and Universities.  Despite relying on the similarities between professional sports and college athletics to conclude that individual team bargaining would be problematic, the Board found that there were substantial and legally significant distinctions between professional sports and collegiate sports which weigh in favor of declining to exercise jurisdiction. Specifically, the Board noted that 108 of the approximately 125 colleges and universities that have FBS football teams are state-run institutions over which the Board cannot assert jurisdiction. Although Northwestern is a private school, it is the only private school in the Big ten Conference and therefore the Board would be unable to regulate the overwhelming majority of the teams in the relevant league. This distinction may usher in a trend to unionize scholarship athletes in leagues where the majority of schools are private colleges or universities.
  3. Significant Reforms were Made by the NCAA to the Terms and Conditions Applicable to Northwestern’s Players.  The Board indicated that in recent years—and specifically in the year since the representation petition was filed—the NCAA has answered the call from athletes and the general public by implementing significant reforms, changing the terms and conditions of the relationship between student athletes and their respective academic institutions. The Board noted that the NCAA’s reforms addressed some of the concerns expressly raised by Northwestern’s players which formed the very basis for their alleged “need” for representation.

A Game of Inches

Based on the trends in the Board’s recent decisions which have taken an expansive view of the NLRB’s jurisdiction, many experts predicted that the Board would issue a ruling recognizing the scholarship football players as “employees” within the statutory meaning of the NLRA.

“[w]e are declining jurisdiction only in this case involving the football players at Northwestern University; we therefore do not address what the Board’s approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities).”

The NLRB’s ruling—which did not reach the merits of the athletes’ claims—has the football players clamoring for an instant replay to have the Board’s call reversed! The Board made it quite clear that its decision was based on the unique facts and novel circumstances particular to this case—leaving the door open for a spirited rematch.