In a decision that has wide-ranging implications for college and university athletics programs, the Regional Director for Region 13 of the National Labor Relations Board has found that scholarship football players at Northwestern University are “employees” within the meaning of the National Labor Relations Act and eligible for union representation. The Regional Director found appropriate a bargaining unit composed of “all football players receiving grant-in-aid football scholarship [sic] and not having exhausted their playing eligibility.”

The Regional Director used the common law definition of employee in making his decision. Under that test, a person is an employee if he performs a service for another, under a contract of hire, for compensation, and is subject to the other’s right of control. He found the following:

• The scholarship football players perform a service (playing football) for compensation (a scholarship)
• The scholarship players’ commitments to play football in exchange for the scholarship constitutes a contract for hire
• The scholarship players are under the control of the University for the entire year, including in-season and out-of-season workouts, restrictions on their entire personal life and detailed regulations players must follow at the risk of losing their scholarship

The Regional Director decided the NLRB’s 2004 Brown University decision, in which the NLRB found graduate assistants not to be employees of the university, to be inapplicable here because playing football is not part of the players’ academic degree program. However, he wrote that even if the Brown University test was applied, the scholarship football players would be found to be employees. He noted:

• The scholarship players are not primarily students due to the 50-60 hours a week during the season that they devote to football
• The scholarship players’ football “duties” do not constitute a part of their academic degree requirements
• The academic faculty does not supervise the players’ football duties; rather, coaches who are not part of the faculty do so
• The grant-in-aid football scholarship is not need-based like the financial aid other students receive but is given solely in exchange for playing football

The Regional Director rejected two additional arguments by the University:

• He decided the scholarship football players are not “temporary employees” (who are generally ineligible to participate in collective bargaining) because they work more than 40 hours a week during the season, work year round, expect to work for 4-5 years and play football as their prime consideration
• He did not include the “walk-on” players in the bargaining unit. He found that they are not employees within the meaning of the NLRA because they do not receive a scholarship and are not subject to the conditions for its receipt

The University now has until April 9, 2014 to seek to appeal the Regional Director’s ruling to the NLRB in Washington, D.C.  We anticipate the University will do so, and we will keep you updated.