Saturday, September 23, 2023
Courthouse News Service
Saturday, September 23, 2023 | Back issues
Courthouse News Service Courthouse News Service

NLRB College-Athletes Order Throws NCAA Into a Tizzy

(CN) - Fighting a ruling with national implications, Northwestern University said it will appeal a National Labor Relations Board decision that Northwestern football players are school employees and can unionize.

The decision by Peter Sung Ohr, an NLRB regional director in Chicago, opens the door for the players to vote on whether they want to be represented by the College Athletes Players Association, which was formed in January.

That month several Northwestern Athletes and CAPA petitioned the NLRB, seeking the ability to collectively bargain for health and safety issues, like other employees protected by the National Labor Relations Act.

In his ruling, Ohr held the Northwestern football players were employees of the university because they received scholarships for performing a full week's worth of work per week, at the university's direction.

Although the NCAA limits athletes to 20 hours per week of practices and games during the season, Ohr said football players on scholarship also spend considerable time training, traveling to games and on other football-related activities.

"[T]he evidence establishes that the players continue to devote 40 to 50 hours per week to their football duties all the way through to the end of the season, which could last until early January," Ohr wrote.

Based on these factors, Ohr wrote, the players "fall squarely within the [National Labor Relations] Act's broad definition of 'employee' when one considers the common law definition of 'employee.'"

Ohr added: "Clearly, the Employer's players perform valuable services for their Employer. Monetarily, the Employer's football program generated revenues of approximately $235 million during the nine year period 2003 - 2012 through its participation in the NCAA Division I and Big Ten Conference that were generated through ticket sales, television contracts, merchandise sales and licensing agreements.

"The Employer was able to utilize this economic benefit provided by the services of its football team in any manner it chose. Less quantifiable but also of great benefit to the Employer is the immeasurable positive impact to Northwestern's reputation a winning football team may have on alumni giving and increase in number of applicants for enrollment in the university."

Ten pages of the 24-page decision focus on the regimented lives of the players, including practice schedules, workout requirements and restrictions on everything from the players' social media use to their off-campus travel - and even swearing in public.

Such control, Ohr said, is exactly the kind of control an employer has over an employee, and is different from the power a school exerts over the typical student.

"Based on the foregoing and the entire record herein, I have found that all grant-in-aid scholarship players for the Employer's football team who have not exhausted their playing eligibility are 'employees' under section 2(3) of the [National Labor Relations] Act," Ohr wrote.

The ruling has major implications for the NCAA and the schools it regulates across the nation, which earn billions of dollars a year from the student athletes, in football and other sports. The impact of the ruling is still unclear, as Northwestern said it will appeal to the NLRB's national body. Also, Northwestern is a private school, and it is unclear how the ruling, if upheld, might apply to state schools, such as those in the football-crazy, and union-unfriendly states in the South and Great Plains.

Last week Northwestern University's president emeritus told CNN that if the student athletes were to prevail, Northwestern give up football entirely.

"If we got into collective bargaining situations, I would not take for granted that the Northwesterns of the world would continued to play Division I sports," Henry Beinen said during a panel discussion at the annual Knight Commission conference on intercollegiate athletics.

Northwestern said in a statement: "While we respect the NLRB process and the regional director's opinion, we disagree with it.

"Northwestern believes strongly that our student-athletes are not employees, but students. Unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes.

NCAA chief legal officer Donald Remy said in a statement: "While not a party to the proceeding, the NCAA is disappointed that the NLRB Region 13 determined the Northwestern football team may vote to be considered university employees. We strongly disagree with the notion that student-athletes are employees.

"Over the last three years, our member colleges and universities have worked to re-evaluate the current rules," Remy continued. "While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college. We want student athletes -- 99 percent of whom will never make it to the professional leagues -- focused on what matters most -- finding success in the classroom, on the field and in life."

The deadline for Northwestern to appeal to the full NLRB in Washington, D.C., is April 9.

Categories / Uncategorized

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.