03.31.2014Region 13 of the National Labor Relations Board delivered a Final Decision and Direction of Election in the closely-watched case concerning Northwestern University’s football players’ attempt to unionize. In Northwestern University v. College Athletes Players Association (“CAPA”), the NLRB ruled that those football players who currently are recipients of the grant-in-aid scholarships and who have not exhausted their four-year NCAA eligibility will be eligible to vote in the election to name CAPA as their bargaining representative for collective bargaining purposes. The NLRB excluded football players who are not receiving scholarships as it found such players were not “employees” under the Act. This decision has the potential to alter the landscape of the collegiate athletics system with lasting impact on future university athletic department recruiting and programs. The Decision In its decision, the Board analyzed the process of player recruitment, the structure of the training program, the athletic and academic commitments required and the responsibilities the athletic program demanded of its players. The Board found that the 85 players receiving grant-in-aid scholarships in the football program fall within the common law definition of employee. Under NLRB v. Town & Country Electric, 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, and in return for payment.” 526 U.S. 85, 95 (1995). The Board concluded that the grant-in-aid scholarship football players perform services for the benefit of the Employer and receive compensation for these services. The players helped generate approximately $235 million in revenue from 2003-2012 for Northwestern, as well as the intangible benefit of bolstering the University’s reputation among donors and possible recruits. The Board found that the grant-in-aid scholarships were compensation in exchange for the athletic services the players performed throughout the year. The Board further found that the demanding control by the University in order to maintain the scholarship evidenced an employment relationship. The players were required to adhere to strict schedules throughout the year, plan their academic life around the demands of the football season, commit a large amount of time towards their athletic endeavors, and were subject to monitoring by their coaches in both their athletic and personal lives. The rules and regulations imposed by the University had to be followed or the players risk losing their scholarships. Importantly, the Board rejected Northwestern’s argument that Brown University’s finding that graduate students were not employees was controlling in this case. The Board concluded that Brown University did not apply because the football players’ duties were separate and apart from their academic studies, unlike graduate students. The Board further distinguished Brown by finding that scholarship football players do not receive academic credit for their participation in the football team and that participation in the football program is not a requirement in receiving their educational degree. Unlike the graduate students in Brown University, football players were not supervised by faculty and subject to their control in academic research and education, but were rather overseen by the football coaches, who are not members of the faculty. The Board similarly rejected Northwestern’s contention that the grant-in-aid scholarship players were temporary employees. While temporary employees are, in fact, ineligible to vote for collective bargaining representation, the Board emphasizes that individuals will not found to be temporary employees solely because their employment term has a definitive termination date. Implications Northwestern University will most likely appeal the Regional Director’s decision. However, should the football players be permitted to unionize, this could have a major effect on college athletics. The decision may well change the way in which institutions design their athletic programs. The decision also has the potential to pave the way for other paid or grant-in-aid students to consider unionization. If you have any questions or for more information about this decision, please contact James J. McGovern, Esq., firstname.lastname@example.org or Allison Gotfried, email@example.com.