NLRB Continues to Expand Its Reach: College Football Players are Employees

The National Labor Relations Board (NLRB) continues to expand its reach into non-union sector. In a decision that has significant ramifications for college athletics, on March 26, 2014, the Chicago Regional office of NLRB concluded that scholarship receiving football players at Northwestern University are school employees. The College Athletes Players Association (CAPA) had filed a petition for an election to represent those players as a union, for purposes of bargaining with the school over terms and conditions of their “employment.” Northwestern contended that the players were not employees, but were students, making them ineligible for union representation.

The Regional Director found the players were employees because their time commitment to football related activities far exceeded time devoted to their student activities (40 to 60 hours per week devoted to football versus fewer than 20 hours per week of class time). Their activities and time were also tightly controlled by their coaches. Furthermore, those football activities were performed for the benefit of Northwestern, which generated approximately $235 million in revenues from football through ticket sales, television broadcast revenue, and other merchandise sales and licensing fees from 2003 to 2012. In return the players were granted scholarships valued at up to $76,000 per year, which the Regional Director found to be compensation for the athletic services they provided to the school.

Based on the time commitment, the coaches’ control over the players, and the scholarship compensation paid to players, the Regional Director concluded that the players were employees of the school, and therefore eligible to participate in a union election, and to be represented by a union (if CAPA wins the election) for purposes of bargaining with the school. While the decision is not final (Northwestern will certainly seek review of the decision by the full National Labor Relations Board in Washington), it is a clear challenge to major college athletic programs across the country. Critics of those programs, who have long complained that the educational mission of major universities is wrongly taking a back seat to the multi-million dollar “business” of the schools’ athletic programs, will seek this decision as validation of their complaints. While the full Board has yet to consider the Northwestern University case, its current makeup under the Obama Administration of three former union attorneys and two former management-side attorneys means it will likely be sympathetic to the idea of union expansion into major college athletics.

On a broader level, the decision also follows the NLRB’s current trend of expanding its own jurisdiction, as well as the arenas into which unions may expand. During the Obama administration, the Board has already expanded the scope of those who may be represented by unions by limiting the scope of who may be considered a supervisor (supervisors are not covered by the NLRA), by limiting who can be considered an “independent contractor,” and by asserting jurisdiction over charter schools. In June 2012 the Board also granted review of two representation cases (which consider whether an election is appropriate) in which it requested that interested parties submit briefs on the issue of whether graduate student assistants who engaged in research are statutory employees. That move signals the current Board’s intent to reconsider (and likely reverse) current law which holds that such graduate students are not statutory employees. Finally, the NLRB continues to focus on employment policies and procedures for both union and non-union employers to find violations of the NLRA.

With the Board’s continued intrusion into areas that it has traditionally not been involved, both union and non-union employers should review their compliance with the obligations imposed under the NLRA by proactively conferring with experienced management-side labor law attorneys, such as the attorneys at Peters, Revnew, Kappenman & Anderson, P.A. By doing so, employers can avoid unexpected costs and litigation.

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