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FMG Law Blog Line

College Football Players Are “Employees” And Can Unionize

Posted on: March 27th, 2014

By: Jonathan Kandel  

                In a surprising decision issued yesterday, the National Labor Relations Board’s (NLRB) Regional Director in Chicago ruled that scholarship football players at Northwestern University qualify as “employees” under the National Labor Relations Act (NLRA) and, therefore, can unionize.  The decision has the potential to completely revolutionize college athletics.

The primary issue in the case was whether football players who receive athletic scholarships are “employees” for purposes of the NLRA; thus, allowing them to vote on unionizing.  Under the NLRA, “employees” are individuals who perform services for another under a contract for hire, subject to the other’s control or right to control, and in return for payment.

The Regional Director concluded that football players who receive athletic scholarships are “employees” under the NLRA.  His conclusion was based primarily on the amount of time the football players spend on football-related activities versus academics as well as the amount of control that Northwestern exercises over scholarship football players, including rules that regulate non-football-related activities.  For example, the Director emphasized that the players spend 50 to 60 hours per week before classes ever start in football training camp.  He also emphasized that, even after classes begin, football players spend 40 to 50 hours per week on football-related activities, but only 20 hours per week attending class plus some time completing homework and preparing for exams.

 

Critics of the decision contend that allowing college athletes to unionize could result in strikes by disgruntled players and lockouts by athletic departments.  Proponents of the decision emphasize that college football is, in all reality, a commercial enterprise that generates billions of dollars in revenue based on services performed by college athletes.  This may have been a factor in the decision; the Regional Director noted that Northwestern’s football program generated $30.1 million in revenue during the 2012-2013 academic year.

The proponents’ argument may sound familiar; there have been a lot of discussions lately regarding college athletes being paid.  The ruling also comes at the same time that the NCAA, which is the governing body for college sports, is fighting multiple lawsuits by former players, including one where former players seek a portion of the billions of dollars earned from broadcasts, memorabilia sales, and video games, and another alleging that the NCAA did not protect players from significant head injuries.

Notably, the decision does not impact the vast majority of college football players.  The NLRB has no jurisdiction over public universities, only private universities.  According to the decision, of the 120 to 125 universities with Division I football programs, only 17 are private.  Players at public universities would have petition their state’s labor board if they want to unionize.

Northwestern has announced that it will appeal the Regional Director’s decision to the full NLRB in Washington, D.C.  Regardless of the outcome at the NLRB, this case will likely be appealed further to the Federal Court of Appeals, and perhaps the Supreme Court.  Stay tuned for future updates.

So what do you think, are college football players “employees?”

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