College Football Players Are Employees: NLRB Regional Director Rules They Can Unionize

In a somewhat shocking turn of events, Peter Sung Ohr, the Regional Director of the National Labor Relations Board’s Region 13 in Chicago, ruled earlier today that Northwestern University football players on grant-in-aid scholarships are employees of the school and are therefore entitled to vote in an election to determine whether they wish to be represented by the College Athletes Players Association (CAPA or Union).

The stunning decision has the potential to radically alter the world of college athletics in which the National Collegiate Athletic Association (NCAA) and participating universities have never recognized students as employees. Northwestern has already announced that it plans to appeal the case, which we have previously covered here.

In siding with the Union, the Regional Director concluded that the football players on scholarship have what is primarily an economic relationship with Northwestern. In reaching this conclusion, the Regional Director noted that Northwestern controls and directs their daily activities and compensates them for their football skills in the form of scholarships. He wrote: “The record makes clear that the Employer’s scholarship players are identified and recruited in the first instance because of their football prowess and not because of their academic achievement in high school.”

Other factors that tipped in favor of the Regional Director’s finding were that the players are subject to special rules and policies that do not apply to the general student population, such as that freshmen and sophomore students on scholarships are required to live on campus. Upperclassmen can live off campus but must submit their lease for approval to their coach. As far as academics, the Regional Director observed “[e]ven the players’ academic lives are controlled as evidenced by the fact that they are required to attend study hall if they fail to maintain a certain grade point average (GPA) in their classes.” For these reasons, the Regional Director concluded that the players should be treated as employees and can, therefore, vote on whether they wish to be unionized.

The Regional Director also rejected Northwestern’s argument that the proposed bargaining unit was inappropriate because it did not include walk-on players, who share an “overwhelming community of interest” with the scholarship players. He reasoned that the walk-ons do not stand the risk of losing their scholarships if they stop playing football, and that because they do not receive money to play football, they cannot be considered employees.

The Regional Director’s decision is likely far from the final word on the subject. The next step is a request for review to the NLRB in Washington, DC.  After that, the case could eventually wind its way through a federal appellate court and ultimately, it could reach the United States Supreme Court.

Northwestern officials said in a statement they were disappointed with the Regional Director’s decision.  “While we respect the NLRB process and the regional director’s opinion, we disagree with it.  Northwestern believes strongly that our student-athletes are not employees, but students. Unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes.”

Northwestern’s football players are the first in college sports to seek union representation. Behind the unionizing effort is CAPA, headed by Ramogi Huma, a former UCLA linebacker who has become an advocate for football players’ rights. CAPA is backed by the United Steelworkers, which is covering the group’s legal expenses. Among its platforms, CAPA seeks financial coverage for players with sports-related medical expenses, independent concussion experts to be placed on the sidelines during games, and the creation of an educational trust fund to help former players graduate.

Arent Fox’s Labor & Employment and Sports practices will continue to monitor developments in this case.