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NLRB "Tackles" College Athletics
By T. Christopher Bailey on April 10, 2014 at 12:55 PM

College style football on field with a pile of moneyIn a decision with the potential to change the landscape of major college sports, a National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) ruled that scholarship football players at Northwestern University are employees of the university and, therefore, entitled to hold an election to decide whether or not they wish to be represented by a union. Northwestern University immediately stated its intent to appeal the ALJ’s decision, and this matter is likely to end up working its way through the federal courts, and possibly the US Supreme Court.

This dispute arose following efforts by former Northwestern quarterback Kain Colter and the newly created College Athletes Players Association to organize current scholarship football players at Northwestern. After a successful authorization card campaign, the union petitioned the NLRB for a representation election. Northwestern opposed the election on the grounds that the players were not employees of the university and, therefore, not entitled to form a union for purposes of collective bargaining.

In a decision that raised more questions than it answered, Administrative Law Judge Peter Sung Ohr issued a 24-page opinion which carefully and exhaustively analyzed the life of a Northwestern scholarship football player in an effort to determine whether such players met the common law definition of an “employee.” In answering that question in the affirmative, ALJ Ohr cited the following facts:

  • During August training camps, players engage in 50-60 hours of football-related activities and may be subject to a strict schedule set by the University through its coaches for up to 16 hours a day.
  • During the regular football season, players devote 40-50 hours to football activities and are required to fulfill strict schedules set by the University.
  • If the football team reaches a bowl game, the regular season schedule extends into December and players forego most of their Christmas break.
  • “Optional” offseason workouts are monitored by a “player leadership council” for attendance and team personnel monitor attendance at mandatory offseason activities.
  • Spring practice activities require 20-25 hours per week of football-related activity.
  • Players who receive football scholarship receive up to $76,000 in grant-in-aid that covers tuition, fees, room, board and books.
  • Players spend 20 hours or less attending classes.
  • Over a ten year period (2003-2012), the football program generated $235 million in revenue while incurring expenses of only $159 million. The profits realized from Northwestern’s football program were vital to supporting other non-revenue generating sports and ensuring the university’s compliance with Title IX.

Based on these and other facts, ALJ Ohr concluded that the scholarship football players were not “primarily students,” rather they were “employees” who performed valuable services for Northwestern under the control of its coaching staff in exchange for valuable consideration. In concluding that the appropriate bargaining unit consisted solely of scholarship football players, ALJ Ohr excluded walk-on players who, despite being subject to the same rules and schedules, are not compensated for their services.

While ALJ Ohr’s decision stunned the sports world, and is undoubtedly subject to years of challenges, the decision raises as many, if not more questions than it answers.

  • What impact, if any, does the decision have outside of college football? Does the decision affect only athletes of “revenue generating sports” (notably college basketball) or does it impact all college sports? What about sports which require lesser time commitments?
  • The NLRB does not have jurisdiction over public employers. A number of college football programs (e.g., University of Missouri) are maintained by state universities. Would state labor laws apply to these programs?
  • If the scholarship football players are employees, and their grant-in-aid scholarship is compensation, do the football players have to pay income tax on the value of the scholarship?
  • Would the football players’ injuries be subject to workers’ compensation laws?
  • What sort of issues might be subject to collective bargaining? Would decisions related to player discipline be subject to an employee grievance procedure?
  • Could college players receive compensation in addition to the value of their grant-in-aid scholarship?

It’s unlikely we will get answers to these or many other questions that may be asked in the coming months/years. But if you’re like me and you look forward to a Saturday afternoon tailgate at your alma mater or enjoy laughing at the ridiculous predictions of the College Game Day crew, you may want to cross your fingers, rub your lucky rabbit’s foot or do whatever it is you do to bring your team good luck. The landscape of college football may be headed for significant changes.

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