An unprecedented decision has opened the door for the unionization of college athletes.  On March 26, 2014, the Regional Director of Region 13 of the National Labor Relations Board, Peter Sung Ohr, ruled that most Northwestern University football players receiving scholarships are “employees” and therefore are entitled to choose whether to be represented for purposes of collective bargaining.  This decision could substantially impact the economics of athletic programs at private colleges and universities across the country, and it calls into questions long-held assumptions about the amateurism of the “student-athlete.”   While criticizing the decision, Senator Lamar Alexander (R-TN, former Secretary and Education, and former President of the University of Tennessee) summed up his concerns by stating:  “Imagine a university’s basketball players striking before a Sweet Sixteen game demanding shorter practices, bigger dorm rooms, better food, and no classes before 11 a.m.  This is an absurd decision that will destroy intercollegiate athletics as we know it.”

Courts have interpreted the term “employee” as used in the National Labor Relations Act to mean “a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.”  Applying this definition to the Northwestern scholarship football players, Ohr found that:

  • Players’ scholarships constitute “compensation for the athletic services they perform for [Northwestern];” 
  • The “formal tender offers” Northwestern disseminates to recruits for acceptance and signature constitute employment contracts setting forth the terms and conditions governing the relationship; and
  • Scholarship players remain under “strict and exacting control by [Northwestern.]” 

By contrast, Ohr held that those Northwestern football players who “walk on” to the team without the benefit of a scholarship are not “employees” and therefore are not entitled to choose whether to be represented.  Northwestern argued that the resulting bargaining unit was a fractured unit, inappropriate because of the “overwhelming community interest” between scholarship and walk-on players.  Ohr disagreed, finding that although scholarship players and walk-ons have materially similar experiences, the key difference between the two groups – compensation in the form of grant-in-aid scholarship – loomed so large as to warrant the legal distinction.  Moreover, Ohr noted, a fractured unit is, by definition, composed entirely of “employees” under the Act.  Because walk-on players are not “employees,” the unit could not be impermissibly fractured. 

The University argues that the Regional Director ignored many of its arguments, including the facts that: students often have serious demands placed upon them by their schools;  many of the requirements imposed on the players are derived from NCAA rules over which the school has no control; and the athletic system will be disrupted by having private schools subject to a potential bargaining obligation since only private employers are subject to the NLRA, while other schools in their leagues from the public sector will have no legal obligation, or a much more limited obligation, to bargain.  In addition, the University provided substantial evidence as to the educational benefits student-athletes receive by virtue of their participation in intercollegiate athletics.

Although this decision represents a remarkable departure from business-as-usual in college athletics, there are several opportunities for Ohr’s decision to be reversed or preempted.  Northwestern filed a request for review by the Board on April 9, 2014.  The Board grants requests for review only where “compelling reasons exist therefor.”  Given the novelty and significance of the issue and the lack of directly applicable Board precedent, there is a high probability that the NLRB will grant the review.  If the Board upholds the Regional Director’s order, the ballots will be counted.  If the players vote to be represented by the union, then the courts will almost certainly be asked to review this matter.  It is also possible that Congress will act to clarify whether scholarship athletes are “employees” within the meaning of the Act.  Finally, there may be a role for the NCAA, the elephant in the room throughout the litigation, to facilitate some of the benefits for which Northwestern scholarship football players seek to bargain and/or to broker a negotiated resolution. 

In the meantime, the players have, in effect, won the first game in a long series.  For private colleges and universities, the uncertainty surrounding unionization – like that surrounding amateurism, sports revenue distribution, and player safety – continues.  “Film at eleven….”