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College Athletes: Students or Employees?

In an unprecedented legal step, the College Athletes Players Association (CAPA) has filed a petition with the Chicago-based regional office of the National Labor Relations Board (NLRB), Region 13, seeking to organize the 85 football players receiving athletic scholarships at Northwestern University for purposes of representing them in collective bargaining.

Backed by the United Steelworkers Union, CAPA filed union cards with the NLRB from an unknown number of the football team’s members. In order for the NLRB to process the petition and proceed with an election to determine whether a majority of the players actually want to be represented by the union, at least 30 percent of the potential members from an appropriate unit for bargaining currently working for the employer must sign union authorization cards. In the case of the Northwestern football team, a minimum of 26 of the 85 scholarship players must have signed union cards to meet the 30-percent requirement.

Before an election can be scheduled by the NLRB, several important questions will likely be raised by Northwestern University that must be addressed. The first is whether college athletes, like the members of the Northwestern football team, are actually employees with a legal right to join a union under the terms of the National Labor Relations Act (NLRA). The Board could conclude that the athletes are either employees or simply college student-athletes participating in varsity college athletics as part of their college educational experience. Ramogi Huma, a former college football player at UCLA and current President of CAPA, believes that the athletes are clearly employees. He stated, “[I]f college athletes are students they should not devote 40 hours each week to training, traveling and practicing when their graduation rates are only 50 percent.”

Should the Board conclude that the football players are employees of Northwestern University, a second issue that could be raised by the university will require a determination as to whether the 85 members of the University football team constitute an “appropriate bargaining unit” for purposes of collective bargaining. For example, the NLRB could accept the petitioned-for unit as an appropriate unit for union representation or it could conclude that the appropriate unit should include all Northwestern University scholarship athletes or perhaps all varsity athletes at the University, even those not receiving the formal grant-in-aid athletic scholarship.

The NLRB will conduct a thorough analysis of the facts presented by the parties during an informational hearing before rendering its decision. The initial determination will be made by the Regional Director of Region 13 of the NLRB. Either party at the hearing may seek review of the initial regional determination by formally requesting a review of the decision to the five members of the NLRB in Washington, D.C. Ultimately, this matter may be appealed to the U.S. Court of Appeals and, ultimately, the Supreme Court before a final determination will be reached.

In a news conference announcing the filing of the petition, Huma was joined by Kain Colter, Northwestern’s starting quarterback last season, and Leo W. Gerard, the president of the United Steelworkers Union, to explain the rationale behind the unionization effort. “The same medical issues that professional athletes face are the same medical issues collegiate athletes face, except we’re left unprotected,” Colter stated. “The N.F.L. has the N.F.L.P.A., the N.B.A. has the N.B.A.P.A. and now college athletes have the College Athletes Players Association.” Colter, who has completed his college athletic career, described the NCAA as resembling a dictatorship and specifically endorsed the relaxation of transfer restrictions for college athletes and the introduction of guaranteed scholarships that cannot be modified or revoked by a university as a result of an on-field injury suffered while playing for that university.

NCAA Chief Legal Officer Donald Remy issued a response underscoring the NCAA’s opposition to the union proposal. “This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education,” Remy said in the statement. “Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize.” Remy’s full statement can be found here: http://www.ncaa.org/about/resources.

Northwestern University also released a statement emphasizing its opposition to any effort to unionize its players. “Northwestern believes that our student-athletes are not employees and collective bargaining is therefore not the appropriate method to address these concerns,” athletic director Jim Phillips stated. “However, we agree that the health and academic issues being raised by our student-athletes and others are important ones that deserve further consideration.” A link to the full statement from Jim Philips can be found here: http://www.nusports.com/genrel/012814aaa.html.

Jackson Lewis P.C. © 2014

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About this Author

Gregg E. Clifton, Collegiate Professional Sports Attorney Jackson Lewis Law firm
Office Managing Shareholder

Gregg E. Clifton is Office Managing Shareholder of the Phoenix, Arizona office of Jackson Lewis P.C.  He is Co-chair of the firm’s Collegiate and Professional Sports Industry Group and serves as one of the editors of the firm’s sports law blog, www.collegeandprosportslaw.com. Mr. Clifton has extensive experience in the collegiate and professional sports world.  He has advised numerous professional franchises on general labor and employment issues, including Title III ADA...

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Associate

Shawn N. Butte is an Associate in the Boston office of Jackson Lewis P.C.

Mr. Butte received his B.S. in Industrial and Labor Relations from Cornell University and his J.D. from Boston College Law School. During law school, Mr. Butte was an oralist on the Jessup International Law Moot Court Team and President of the International Law Students Association. 

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