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August 19, 2019

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Hail Mary: NLRB (National Labor Relations Board) Regional Director Holds College Football Players are Employees

On March 26, 2014, Peter Sung Ohr, the Chicago Regional Director of the National Labor Relations Board (“NLRB”) ruled that members of the Northwestern University football team receiving athletic scholarships are employees, and not students, under the National Labor Relations Act, allowing them the opportunity to unionize through an NLRB election.

First and Ten: A Day in the Life

The Regional Director’s decision provides a detailed description of the daily life and sports-related activities of a NCAA Division I Northwestern football player, often reiterating that the time players devote to football exceeds the time players devote to academic activities.  Everything from weight room conditioning to a mandatory team dinner-and-a-movie is included in the exposition of the players’ schedule, with an emphasis on the time commitment required for all football-related activities, amounting to about 40 to 50 hours per week during the season.

In the Pocket: The Director’s Opinion

In finding that the scholarship players were within the common law definition of “employee,” the Regional Director focused almost exclusively on the “compensation” they receive for playing football at the school and the strict teams rules and standards for participating on the team. 

In the Regional Director’s view, the players perform services for the benefit of the University, since the school receives revenue from its football program, and are compensated in the form of tuition, room and board, and money for books. Addressing the players’ unique form of compensation, the Regional Director stated that “[w]hile it is true that the players do not receive a paycheck in the traditional sense, they nevertheless receive a substantial economic benefit for playing football.” Also acknowledging that the players might not feel pressure to perform on the field, as their scholarships have a four-year term, the opinion emphasized the fact that players’ scholarships can be reduced or cancelled for things like abusing team rules.

Citing the detailed gameday itineraries, team rules, and strict monitoring of player behavior by coaches, the Regional Director ruled that the scholarship players are subject to the University’s “control” in the performance of their duties. After describing the efforts that football coaches make to aid the players in their academic pursuits, such as mandatory study halls and tutoring, the Regional Director mused that “these noble efforts by the Employer, in some ways only further highlight how pervasively the players’ lives are controlled when they accept a football scholarship.”

However, only scholarship players are declared employees in the decision.  In the Regional Director’s view, walk-ons who do not receive scholarships are not entitled to be in the bargaining unit, because they play only for the “love of the game.”

 Touchdown or Fumble at the Goal Line? Brown Inapplicable

The Regional Director, without much explanation, rejected the idea that Board’s opinion inBrown University, 342 NLRB  483 (2004) which held that graduate students at universities were not employees under the Act, had any application to football players. 

Despite this, the Regional Director than went on to explain why, even if Brown did apply, the football players should be considered primarily employees. The opinion considers each of the factors the Board focused on in Brown:

  • their principal time commitment is to football activities rather than academic activities;

  • unlike in Brown, where the graduate assistants’ teaching and research duties constituted a core element of their graduate degree requirements, the players’ football activities are not required to obtain their undergraduate degree;

  • the academic faculty members do not oversee the athletic duties that the players perform, which mitigates the concern in Brown that imposing collective bargaining would have a “deleterious impact on overall educational decisions” by the academic faculty; and

  • the players’ compensation is not financial aid to attend the university regardless of thequality of their work, as in Brown, but is rather tied to their athletic services, and would be revoked if they quit or were released from the team.

Instant Replay Challenge:  Appeal Likely

An appeal is most certainly forthcoming to the full Board in Washington – - although given the time it has taken the Board to issue decisions in its cases on medical residents and graduate students, this issue could be around for a very long time before it gets resolved.   In the meantime, we are likely to see more schools faced with these types of organizing campaigns and elections among their scholarship athletes.  

© 2019 Proskauer Rose LLP.

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About this Author

Michael J Lebowich, Labor, Employment, Attorney, Proskauer, Law Firm
Partner

Michael Lebowich is a Partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He...

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