[Editor's Note: Brian is a graduate of Northwestern University Law School.] A regional director of the National Labor Relations Board (the "NLRB") recently ruled that football players at Northwestern University receiving grant-in-aid scholarships and who have not exhausted their eligibility are "employees" under the National Labor Relations Act (the "NLRA"). The decision allows these student-athletes to vote on whether they will be represented by a union for purposes of collective bargaining. The ultimate result would be a union contract setting forth the "compensation" (amount of scholarships), benefits and working conditions of the student-athletes.
The union is the Collage Athletes Players Association ("CAPA"), which filed a petition with the NLRB to represent the student-athletes. Under the NLRA, an employee is "a person who performs services for another under a contract of hire, subject to the other's control or right of control, in return for payment." Essentially, the NLRB's Regional Director in Chicago determined that the scholarships given to the student-athletes are "compensation" for the services of playing football.
The decision will likely have minimal immediate effect on college football. The NLRB has no authority over state-run institutions, which are subject to the jurisdiction of labor relations boards created by state legislatures. Not all state legislatures have created state labor boards. In addition, the decision only affects the student-athletes at Northwestern University and no other private colleges and universities. Each regional director makes decisions on a case-by-case basis, although the other regional directors will give the Chicago Regional Director's Decision some weight. Further, Northwestern is planning to appeal the decision. However, with the NCAA also facing a class-action lawsuit by former players seeking compensation for use of their names and likenesses, the decision may spur the NCAA to reform a number of its policies and procedures.