On March 26, 2014, the Chicago Regional Office of the National Labor Relations Board (NLRB) ruled that Northwestern University football players are “employees” under the meaning of the National Labor Relations Act (NLRA). This is a significant victory for the College Athletes Players Association (CAPA), which is being backed by the United Steelworkers union in its representation petition. Regional Director Peter Sung Ohr specifically ruled that Northwestern failed to carry its burden of showing that its football players were not employees. As a result of this ruling, the Regional Office ordered an immediate union election amongst Northwestern football players who receive grant-in-aid scholarships and have eligibility remaining.

In opposing the CAPA’s petition, Northwestern had relied on a 2004 NLRB decision on Brown University graduate students' attempt to unionize as the controlling authority that should determine the fate of the CAPA’s petition. In that decision, the NLRB held that graduate students could not legally unionize because their main duties are in furtherance of their studies, and not the economic interests of the university.

The Regional Office, however, found that the Brown University case was not applicable because “players' football-related duties are unrelated to their academic studies, unlike graduate students, whose teaching and research duties were inextricably related to their graduate degree requirements.” The Regional Office instead applied the common law “right to control” test, which considers what level of control an employer has over an alleged employee under a variety of factors. The Regional Office concluded that grant-in-aid football players at Northwestern University are subject to the university’s control in their performance of duties as football players. The Regional Office also considered that the 40 to 50 hours per week players must devote to football-related activities are "[n]ot only [more] hours than many undisputed full-time employees work at their jobs, [but] also many more hours than the players spend on their studies." Another factor considered by the Regional Office was that players’ year-round schedules are controlled by the university’s football program.

Northwestern University has already announced that it will, in fact, appeal to the full National Labor Relations Board in Washington, D.C. Therefore, although the Regional Office’s decision is a considerable step forward in collegiate athletes’ ongoing attempts to unionize, the likelihood of an appeal means that this issue is not resolved yet. The Regional Office’s decision to employ the right to control test, instead of the Brown University case, may have created a reviewable issue.

If upheld, the Regional Office’s ruling may be a game-changer in college sports. Granting student-athletes “employee” status and allowing them to unionize might result in athletic programs becoming too costly for some universities, as the CAPA’s demands include requiring schools to pay for medical expenses related to sports-related injuries, extending athletic scholarships to cover the full cost of attending college, and having a percentage of the revenue generated by college sports invested in a continuing education trust fund for athletes who turn professional before graduating. The presence of a union for student-athletes on campus also raises the prospects of strikes by disgruntled players or lockouts by athletic departments.

Higher education clients are encouraged to closely monitor this significant new case. We will immediately update our clients on any further developments, as necessary.