Hunton Employment & Labor Perspectives

On March 26, 2014, in a novel and potentially ground-breaking decision, National Labor Relations Board (“Board”) Region 13 Director Peter Sung Ohr ruled that Northwestern University football players who receive athletic scholarships are “employees” of the University and are entitled to unionize.  Ohr ordered a secret ballot election to be held for eligible players to vote on whether they want to be represented by the College Athletes Players Association, the Petitioner in this case, for collective bargaining purposes.

After reviewing Northwestern University’s football scholarship program, as well as the many requirements imposed on the players by the football program, Ohr concluded that athletic scholarship-receiving players are “employees” of the University under the common law definition of the term: “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.”

Ohr held that the players perform a valuable service -- playing football -- for the University in exchange for compensation in the form of scholarships covering the players’ tuition, fees, books, room and board.  Ohr also held that the players were subject to the University’s control in the performance of their duties as football players, citing the extensive time commitment required of players, as well as the various National Collegiate Athletic Association (“NCAA”)  regulations enforced by the University and the football program rules by which the players must abide.  This exchange of services for compensation is memorialized in the “tender” each scholarship-receiving player is required to sign -- the “employment contract,” according to Ohr.

Ohr distinguished the present case from the Board’s 2004 Brown University ruling, in which the Board found that graduate assistants at Brown were not “employees.”  Ohr reasoned that, even under the four-factor test enunciated by the Board in Brown University, the outcome in this case was different because: (1) athletic scholarship-receiving football players are not  “primarily” students; (2) the players’ duties as athletes are not related to their studies; (3) their work is not supervised by the academic faculty of the University; and (4) their compensation is tied to athletic performance and does not constitute “financial aid.”

The decision contains several key limitations.  Ohr held that only the players who are currently receiving athletic scholarships are “employees” of the University.  Walk-on players, who do not receive athletic scholarships, and incoming freshman, who have not yet begun playing for the University, are excluded from the bargaining unit.  Those players who have exhausted their playing eligibility under the NCAA’s rules are also excluded from the bargaining unit.

Ohr’s decision represents the first touchdown for the union, but the “game” has only just begun.   In a statement provided on March 26, Northwestern University stated that it plans to appeal Ohr’s decision to the full National Labor Relations Board.  This decision, if ultimately upheld, also raises significant questions beyond college athletes’ ability to unionize and implicates issues such as universities’ obligations to student-athletes with respect to workers’ compensation and wage and hour laws.