NLRB Region 13 Rules that College Football Players Can Unionize

In a case of first impression, Region 13 of the National Labor Relations Board (NLRB) determined that football players who are on scholarship at Northwestern University are “employees” of the school and eligible to vote whether they want to be represented by the Collegiate Athletes Players Association (CAPA), an entity financed by the United Steelworkers (USW) union.

According to the decision, “players receiving scholarships to perform football-related services for the Employer [Northwestern] under a contract for hire [athletic scholarships] in return for compensation [tuition, room & board, and stipends] are subject to the Employer’s control [team rules] and are therefore employees within the meaning of the Act.”

Region 13 determined that athletic scholarships are an employment contract for compensation, since they cover a football player’s tuition, fees, room, board, and books for up to five years. In fact, the value of football scholarships at Northwestern is roughly $76,000 per year resulting in a total compensation package in excess of one quarter of a million dollars throughout the four or five years they perform football duties.

Walk-on football players do not meet the NLRB’s definition of employees because they do not receive a scholarship or compensation for their time devoted to the Northwestern football program and thus are not eligible to vote in the upcoming union election

Northwestern University as the “employer” has the right to request a review of this decision by the full National Labor Relations Board in Washington, D.C. I expect the school will seek such review, though the full NLRB will likely rubber stamp Region 13’s conclusion. From that, Northwestern can appeal the matter to a Federal Circuit Court where a different outcome may occur.

This decision raises more questions than it answers.

Northwestern is a private university, and this decision, if it stands, likely governs other private universities. Football players – or any athletes – at public universities would have to abide by their own state’s collective bargaining laws and may not meet their individual state’s definitions of “employee.” For example, Northwestern football players may have federal collective bargaining rights under the National Labor Relations Act, but football players for The Ohio State University may not have collective bargaining rights because they may not be “employees” under State Employment Relations Board doctrine.

Other questions raised by this decision include:

• Are Northwestern football players who are on scholarship entitled to overtime pay for all hours worked in excess of 40 hours each week? According to testimony in the NLRB case, players spent 50-60 hours per week devoted to football during training camp and upwards of 25 hours over a two day period traveling to and from away games, attending practices and meetings, and competing in those games.
• How does the determination that football scholarships are “compensation” impact a student-athlete’s eligibility? Specifically, the NCAA prohibits student-athletes from receiving compensation for just about everything and suspends players from games and schools from bowl games for breaking this rule.
• Are Northwestern scholarship football players now eligible for workers compensation benefits for injuries sustained while engaging in football-related endeavors?
• Will the Board ultimately expand this issue from student-athletes who receive scholarships to students who receive scholarships related to the arts and sciences? For example, does a student who receives a scholarship requiring her to major in music become an “employee” since the scholarship requires her to take music classes like the football player is required to practice and play football?

Since this issue has severe ramifications to every college and university that offers scholarships of any kind to its students, look for updates from the attorneys at Roetzel & Andress as new developments happen.