Game Change: NLRB Permits College Football Players to Elect a Union

College scholarship football players at Northwestern University are cleared to hold a union election according to The National Labor Relations Board in Chicago.

By Nancy B. G. Lassen

The National Labor Relations Board broke new ground on March 26, 2014, when the Regional Director for the Chicago Office of the NLRB directed a union election among college scholarship football players at Northwestern University. The election petition was filed by the College Athletes Players Association (“CAPA”), with significant support from the United Steelworkers of America. If successful, the Northwestern football unionization effort could be a game-changer for collegiate athletics in America.

While most people understand that college athletes are not paid salaries for their service as athletes, few outside college sports know that collegiate athletic programs do not supply medical coverage for injuries, even disabling injuries, for more than a year or two after the injury. Most people also don’t know that scholarships are routinely withdrawn after an athlete is unable to play due to injury. Too frequently, college athletes are unable to complete their degree during the period of their NCAA eligibility due to the rigorous and time-consuming demands of sports and injury — but their scholarships end with their eligibility.

Enter the labor movement. As Ramogi Huma, the former UCLA linebacker who founded CAPA, says the union organization effort is “about finally giving college athletes a seat at the table. Athletes deserve an equal voice when it comes to their physical, academic and financial protections.” Kain Colter, the star quarterback who has led Northwestern’s football team in organizing with CAPA, has been clear that the athletes’ goal is to win the right to organize and collectively bargain with Northwestern for better medical protections; for fully-guaranteed scholarships (even if the player is injured); for the right to continue their education and graduate after their NCAA eligibility expires; for disability insurance and other programs for players who become injured as a result of their sports injuries, and similar protections. As Colter testified before the NLRB, he abandoned his premed major and the dream of attending medical school to transfer to a less demanding major, because he could not handle both his studies and the 50-60 hour weeks required by Northwestern Football. “It truly is a job,” Colter said. “There is no way around it.”

Northwestern itself has acknowledged that the health and academic issues raised by CAPA are important and warrant further consideration. Yet while the top 5 football conferences in the United States rake in more than $5 billion dollars in annual revenues, at the physical expense and sacrifice of the college players, conditions at Northwestern and other schools have not changed.

The National Labor Relations Act covers private sector employers and employees within the meaning of the Act. For many years the NLRB has maintained that an “employee” is someone who performs services for another, subject to their right of control, in return for compensation. In the Northwestern University case, the NLRB Region broke new legal ground in determining that the scholarships and grant aid promised to football players in exchange for their service as athletes constitute compensation for those services.

In addition to providing services for compensation, the Region also determined that the Northwestern football players provide services “under strict and exacting control by their Employer throughout the entire year.” In fact, the Region concluded that Northwestern’s scholarship football players are pervasively controlled: they receive daily itineraries that govern their activities from 5:45 a.m. until 10:30 p.m., when they are supposed to go to bed; they spend 40-60 hours a week engaging in football related activities; they receive travel itineraries and have no discretion from what will occur during weekly trips that cover 25 hours, including travel means, lodging, and attire; they are subject to discipline for any infraction of directions and supervision; “coaches have control over nearly every aspect of the players’ private lives,” including where they live, whether they have outside employment, whether they drive personal vehicles, when they leave campus, what they post on the internet or communicate to media; and gambling and the use of alcohol or drugs.

Based on its consideration of these factors, the Region concluded that Northwestern’s scholarship football players were “employees” under the Act and therefore had the same right to organize and form a union as any other employee subject to that law.

So what happens now? Because there is no right of appeal from a Regional Director’s decision to direct an election, Northwestern’s football players will vote on whether to form a union (unless the NLRB agrees to consider an appeal, if one is filed). If CAPA wins the election, Northwestern University will face a choice: it can either bargain with its football player employees, or it can refuse to bargain, and start the inexorable march to judicial review. Either way, NLRB Region 16’s election decision in Northwestern University is a riveting new development in Board law, one that assuredly will be nothing less than a game changer: for the Board, in the Courts, for the NCAA, and in private sector colleges and universities– not just for football, but potentially across a whole range of scholarship funded non-academic activities. As they say – game on, and play ball!

For more information on how Willig, Williams & Davidson can help you keep up with the rapidly changing rules governing employers, employees and unions, feel free to contact any of the attorneys in our Labor Department.

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