On Tuesday, I wrote about the efforts of Northwestern University football players, led by their former quarterback, Kain Colter, to win the right to unionize under the auspices of the College Athletes Players Association (CAPA). Now, I’m not saying that piece had any influence on the National Labor Relations Board, but let’s just say it seemed a little … um … coincidental when the Chicago Sun-Times reported on Wednesday that the NLRB’s Chicago Regional Director ruled in favor of Colter and CAPA.
In his opinion – technically called a “Decision and Direction of Election,” which you can download in .pdf format from the NLRB’s website – Regional Director Robert Sung Ohr found that Northwestern’s scholarship football players are “employees” within the meaning of Section 2(3) of the National Labor Relations Act, 29 U.S.C. § 152(3). He therefore ordered that “an election be conducted under the direction of the Regional Director” among the members of the “appropriate bargaining unit,” comprised of “all football players receiving football grant-in-aid scholarship and not having exhausted their playing eligibility,” to determine whether they wished to unionize. Northwestern University, No. 13-RC-121359, Decision and Direction of Election, at 2.
As earth-shattering as this ruling seems at first blush, it’s important to understand that this is the first step in a potentially long, drawn-out process, the ultimate result of which is far from clear. According to the Sun-Times, Northwestern has already indicated that it will appeal the Regional Director’s decision, which means, in technical terms, it will file a “Request for Review” with the full NLRB. In response to the Request for Review, the full Board can then affirm, modify, or reverse the Regional Director’s Decision and Direction of Election. (For further information, see “The NLRB Process” on the Board’s website.) And even if the full Board upholds the Regional Director’s decision, Northwestern likely will seek a review of the Board’s action in federal court.
Nonetheless, Regional Director Ohr’s Decision and Direction of Election makes an impressive case that scholarship football players are, indeed, “employees,” as that term in used in the law: They perform services which confer substantial benefits – including financial benefits – on the university; they are compensated for their services in the form of tuition and room-and-board grants; they are subject to rules and regulations to which other university students are not subjected; they devote an extraordinary amount of time and effort to football, separate and apart from academics; and they are subject to strict controls imposed by the university and the football coaching staff. Having a fair amount of experience in the field of employment law, I can tell you that those are the hallmarks of what the law considers “employment” to be. Nor does it matter how the parties to that arrangement characterize it; you can call your workers “employees,” “independent contractors,” “volunteers,” or “student-athletes,” but if the legal elements of an employment relationship are there, they are employees in the eyes of the law.
“As the record demonstrates,” Regional Director Ohr wrote, “players receiving scholarships to perform football-related services for the Employer under a contract for hire in return for compensation are subject to the Employer’s control and are therefore employees within the meaning of the Act.” Northwestern University, No. 13-RC-121359, Decision and Direction of Election, at 14. That should be apparent to anyone paying attention to the business of college football. Still, given the sentimental attachment to the mythical – and largely imaginary – notion of the “student-athlete” that permeates the world of college sports, it’s anybody’s guess whether Director Ohr’s common sense approach will prevail.