Peter Ohr, the Chicago regional director of the National Labor Relations Board (“NLRB”), has dismantled the long-held “student-athlete” classification for Northwestern University football players. In his decision this Wednesday, Ohr found that scholarship football recruits are employees, opening the door for the unionization of collegiate football players at private schools.
The highly notable and controversial decision, which Northwestern will appeal, has the potential to forever alter the landscape of college sports. Could this open the door for paying NCAA athletes?
Why are Northwestern football players “employees” rather than “student-athletes”?
Under the National Labor Relations Act (NLRA), workers must fit the statutory definition of an “employee” in order to unionize. To be an employee, Ohr noted, a person must meet a four-part test:
1) Perform services for another
2) Under a contract of hire
3) Subject to the other’s control or right of control, and
4) In return for payment.
Ohr found that Northwestern’s players clearly performed services for the school in return for compensation. He noted that football players are given scholarships, based solely on their athletic ability. These financial awards can easily be altered or canceled should the players be ruled ineligible or voluntarily withdraw. In addition, Ohr found that the scholarship players’ tender agreement constitute a “contract for hire.” The scholarship tenders outline the terms of the arrangement and the conditions and duration of the scholarship “compensation” the athletes would receive.
Ohr’s decision also highlighted a number of facts about football players’ relationship with Northwestern. He found the athletes are clearly subject to their school’s control. Football players have strict 50–60 hour-a-week commitments during training camp, where the school controls the location, duration and the scope of the players’ duties. In addition, Northwestern controls players’ travel itineraries, dress, living arrangements, social media use and more. The school even issues punishments for lateness and team-rule violations. Evidence provided by quarterback Kain Colter, who spearheaded unionization efforts, showed that players are asked to make academic sacrifices in order to play, ranging from only attending classes during certain times to missing classes entirely.
Athletes vs. grad students
Ohr distinguished the players’ situation from the seminal case Brown University, where the Board found graduate teaching assistants were not employees under the NLRA. First, Ohr noted that while teaching assistants are asked to teach, the time they spend working is fairly limited, while the majority of their commitments are geared towards obtaining their graduate degrees. In other words, they are truly students first, while football players spend between 40 and 50 required hours per week playing football, dwarfing the amount of time spent in class. Also, teaching duties are a “core element” of a T.A.’s educational requirements. In contrast, players’ football duties do not bear a relationship to their education and are not supervised by academic faculty.
First, it’s important to note that the decision does not affect walk-on players, since they do not sign tenders and are not given football scholarships as compensation. In addition, because the NLRB only has federal jurisdiction, this decision bears directly on private, not public, universities. However, it seems highly likely that the decision, if upheld, could profoundly affect state school programs as well. It’s possible the promise of increased compensation could force public schools’ football programs to step up their games by approving additional stipends in order to compete.
At least initially, it seems the players are seeking to pursue relatively modest goals through unionization. Their aims include better medical coverage and scholarships that cover actual costs of attendance. Some argue colleges will be less able to provide scholarships under an “employee” regime, even if the demands remain modest.
Several concerns have been raised regarding the decision. Some worry that a players’ union would lead to excessive bargaining over a wide range of issues, which could result in strikes, increased legal and labor costs and a barrage of new rulemakings. In addition, despite large revenues from football programs, increased expenses might have adverse effects on other athletic programs.
The decision may also foreshadow changes to the NCAA’s strict requirements of amateurism, which many believe is long overdue. Following the decision, the NCAA announced, “We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid. . . . We want student-athletes – 99 percent of whom will never make it to the professional leagues – focused on what matters most – finding success in the classroom, on the field and in life.”
Yet, the NCAA signed a new 10-year, $7.3 billion television contract for its football playoffs, and top teams receive hundreds of millions of dollars in yearly revenue, benefitting from the use of players’ names, likenesses and talents.
Do you think it’s time for players to receive a bigger slice of the pie?
Contributing Author: John Guccione
Senior Law Clerk