Polsinelli - Labor and Employment
         

  

March 2014

  

The NLRB Throws a Flag on the Northwestern Football Program

  

 
 

  

     

  

 
 

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W. Terrence Kilroy

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Jon A. Bierman

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Chris M. Mason

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In a much awaited decision, the Regional Director for Region 13 of the National Labor Relations Board ("NLRB") has determined that grant-in-aid scholarship recipients on the Northwestern University football team are more than just students and athletes. He has concluded that they are "employees" under the National Labor Relations Act ("NLRA"), with the right to organize and form a union.

This is the first decision of an NLRB Regional Director addressing the question of whether collegiate-level student athletes can be represented by a labor organization under the NLRA. The NLRB has never ruled on this issue. Collegiate sports programs across the country have stood firm in their opinion that student athletes are students, not employees, and that grant, scholarship, or other financial support is student aid, rather than compensation for athletic services. The opinion of the Regional Director from Region 13 has taken the opposite perspective; he has concluded that the aid, which totals on average approximately $61,000 per athlete per year and covers tuition, food, and housing, is compensation, despite the fact that it is not subject to payroll taxes by state or federal taxing authorities.

In articulating his opinion, the Regional Director focused on the purpose for the aid – namely in attracting and retaining athletes rather than students. Among other factors, the Regional Director assessed the demanding practice and game schedules imposed on the student athletes, the control exercised by the coaching staff over the players, what some might see as lax academic requirements when selecting high school students for the program, and the frequent conflicts between athletic and academic pursuits. He reasoned, in part, that because the selection of athletes for the program was based almost exclusively on their athletic prowess rather than their academic skill or record, and that the focus during their athletic eligibility was on their athletic obligations, that their scholarships were more akin to compensation for services, rather than academic aid.

In the Regional Director's assessment, the football program eclipses athletic pursuits for school and student-athlete alike, finding they are more like employees than students. The Regional Director distinguished NLRB Board precedent ruling that graduate students who provide teaching assistant services for compensation are not employees of their respective institutions. In Brown University, 342 NLRB 483 (2004), the NLRB recognized the overriding academic importance in the relationship between graduate students and the university. The Regional Director of Region 13 held that the Brown University decision was inapplicable; he contrasted graduate students, whose student teaching responsibilities were secondary to their educational pursuits, with the student-athletes at Northwestern. In the Regional Director's opinion, the scholarship athletes were athletes first and students second.

There were several other items of note in the decision. First, the Regional Director concluded that non-scholarship athletes at Northwestern are not employees, despite the fact that they practice and play side-by-side with scholarship athletes. Second, his opinion is limited to Northwestern, leaving open the possibility that different decisions may be reached on other football programs. Finally, he imposed the burden of proof on Northwestern to prove that its student-athletes are not employees.

Northwestern has acknowledged the ruling and says it plans to appeal to the NLRB; their deadline to do so is April 9, 2014. Absent success in this challenge, Northwestern University grant-in-aid scholarship recipients in its football program will be entitled to conduct an NLRB election to determine whether they wish to elect a labor organization to represent them in their relationship with the University.

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