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Northwestern Football Players Recognized as Employees Under National Labor Relations Act

September 15, 2015

By Noah R. Jordan, Esq.

On March 26, 2014, the Regional Director of the National Labor Relations Board, Region 13, Peter Sung Ohr, granted the petition of the College Athletes Players Association (“CAPA”), empowering certain members of the Northwestern University football team to elect to unionize. Ohr’s decision is a historic victory for the American labor movement, as it is the first time that college athletes officially have been recognized as employees under Section 2(3) of the National Labor Relations Act. Players are eligible to vote for or against unionization if they receive “grant-in-aid” scholarships (typically worth $61,000 annually) that pay for their tuition, fees, room, board, and books. Northwestern University, unsurprisingly, disagrees with the decision and has requested that it be reviewed by the NLRB. In my opinion, Director Ohr’s analysis of the facts and applicable law should be upheld in order to insure that the athletes involved, and hopefully, in due course, all college athletes, are provided with the same basic protections as other employees.

Mr. Ohr’s decision rested on three main points. First, Ohr held that the grant-in-aid scholarship players perform services for the benefit of the employer, Northwestern University, for which they receive compensation. It is clear that the players are offered scholarships solely in exchange for athletic services. Although the players must maintain certain levels of proficiency in the classroom in order to be eligible for football, the purpose of the scholarship is to obtain the players’ football abilities. This is illustrated by the fact that players are recruited by the University while still in high school, not based upon their grades or other academic achievements but instead based on their football skills. In exchange for their athletic performance, players are compensated with scholarships worth up to as much as $76,000 per year, or over a quarter million dollars throughout a player’s four to five year college playing career. Perhaps most importantly, players must sign a “tender” before beginning a term of their scholarship. Mr. Ohr determined that this “tender” serves as an employment contract, detailing the terms and conditions of their employment and compensation.

Second, Ohr held that the players are subject to the Employer’s control in the performance of their duties. While many opponents of allowing college athletes to unionize like to argue that college football players are students just like other college students, this is far from the truth. In fact, players performing under scholarships are held to extremely strict regulations, many of which make it difficult for them to tend to academic obligations or afford day-to-day expenses. Depending on the time of year, football activities at Northwestern may start as early as 5:45 am and end as late as 10:30 pm. Players devote an average of 50-60 hours each week during training camp and 40-50 hours each week during the season to football activities, compared to just 20 hours per week devoted to academics. Furthermore, during seasons in which the team earns the right to play in a postseason bowl game, players must return to campus no later than Christmas morning and devote an extra month of the year to football.

Several additional aspects of the players’ daily lives are impacted by the requirements of their scholarships. Players must live on campus in a dorm during their first two years in school and can move off campus as upper classmen only if the coaches approve a lease. They are not allowed to obtain employment outside of football without permission from the athletic department and they cannot profit in any way from their own name or image. Players also must receive permission from coaches before driving a personal vehicle, posting items on the internet, or speaking to the media, among other restrictions. The players also are subject to strict academic restraints, such as not being able to take classes beginning before 11:00 am in the spring or classes that last longer than six weeks in the summer. Most importantly, the players’ scholarships can be reduced or cancelled by coaches at any time, giving coaches ultimate authority over the players’ ability both to attend college and play football.

Finally, Ohr held that the players are “employees” under the common law definition of the word. By doing so, Ohr found that the players are not primarily students, that their duties do not constitute a core element of degree requirements, that they are not supervised by academic faculty, and that the compensation they receive is not financial aid. Thus, the players are distinguishable from graduate students, who were held not to be employees in a prior NLRB decision. This was a key comparison made by the University in opposing CAPA’s petition.

Criticism of CAPA’s efforts and Ohr’s decision has been in no short supply. Most of this criticism has stemmed from the argument that the players are students and, therefore, should not be paid, or that they already are sufficiently compensated by receiving a scholarship. While this is a valid point of view, it reflects a fundamental misunderstanding of what CAPA’s unionization efforts really are about: protecting the well-being of the players and upholding basic notions of fair play.

The most pressing need for players to be able to unionize is to obtain vital protections to their health and well-being. The National Collegiate Athletics Association (“NCAA”) does not require colleges and universities to pay for sports-related injuries. Therefore, under the current system, when a Northwestern player suffers an injury on the field or in the training room, the school has no obligation to pay for even a portion of the costs for necessary care and treatment. Even if the injured player has private health insurance, many policies do not cover varsity sports injuries. Making matters even worse, there is nothing prohibiting a coach from revoking a scholarship from an injured player. Thus, a severe injury could mean the end of a playing career and a chance to earn a Northwestern degree. Moreover, players are precluded from collecting workers’ compensation. Therefore, despite the fact that players function like employees, they are denied perhaps the most important benefits of employment. By finally being recognized as employees and being permitted to opt to unionize, players can bargain for the working conditions necessary to prevent them from finding themselves out of football, out of school, and crippled by injury and debt.

While CAPA’s efforts are not borne out of a desire to institute a pay-for-play culture, money most certainly is an issue. From 2003-2013, Northwestern generated over $265 million dollars in football revenue from ticket sales, television, and merchandise. Northwestern and other schools make a fortune as a direct result of the efforts of their football players. Fans purchase their favorite players’ jerseys and buy tickets to cheer for those players in person but the players do not share in the profits. Not only are players prevented from profiting from of their images, names, or accolades on the field, they also are prohibited from obtaining part-time jobs without special permission. The sad result of these overly strict NCAA regulations is that many players cannot afford to live. While scholarships are treated by schools as covering all player costs of living, they do not sufficiently provide for some basic human needs, like food. Recently, the sports world was shocked when the star of the National Champion University of Connecticut basketball team, Shabazz Napier, announced that he goes to bed hungry many nights. While the debate about whether college athletes should be paid, and if so, how much, is a complicated one, affecting many aspects of college athletics, the status quo of colleges and universities making millions of dollars off of athletes who cannot even afford to buy a pizza after practice no longer should be accepted.

CAPA’s main financial goals that it hopes to achieve through unionizing players involve reinvesting football-generated revenue in the players’ futures. The Union suggests doing this in several ways, such as requiring schools to pay for players’ sports-related injuries, to allow players to retain academic scholarships if their athletic scholarships are eliminated, and to invest a portion of the revenue towards improving graduation rates among players. These goals hardly give credence to the hyperbolic argument that allowing players to form a union will be the beginning of the end of higher education as we know it.

Mr. Ohr’s decision will be reviewed, and, certainly, there is a chance that it will be overturned. Even if it is upheld, the decision is limited, applying only to grant-in-aid scholarship football players at Northwestern (and perhaps other private universities). Much additional work will be needed to achieve similar protections for players at public universities, and there is no guarantee that the decision in this case will be extended to those players. Despite the challenges ahead, the fact remains that this is an important first step toward bringing fundamental protections to employees who, until now, had been denied them. Those who believe in the importance of unionization and fairness in employment should applaud and support the efforts of CAPA.

© 2014 Rothman Gordon, P.C.  The contents of this article are intended for general information purposes only, and should not be relied upon as a substitute for obtaining legal advice applicable to your situation.

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