Paving the Way for NCAA Athletes to Unionize
The Wildcats of Northwestern University are on their way to certifying the first union to represent college football athletes. The players receiving scholarships to play football filed a petition in Region 13 of the National Labor Relations Board seeking an election to vote to become members of the College Athletes Players Association.
In directing an election to take place, the Regional Director found that the players receiving scholarships perform football related services for the University under contracts for hire while under the University’s control and are, therefore, employees under the National Labor Relations Act (NLRA).
The Regional Director first based this decision on the finding that there is an economic benefit to the University (football revenue) and an economic benefit to the student athlete (tuition, room and board). Portions of this exchange are memorialized in the written contract (tender) the player must enter into prior to accepting his four or five year grant-in-aid scholarship. By contrast, the employment relationship was not found for “walk-on” players who do not receive the same grant-in-aid full scholarships.
Next, the Regional Director found the players are subject to the University’s exacting control throughout the academic year including hours of practice, timing of meals, limitations on travel, and even the need to obtain approval before entering into leases for living arrangements.
The Regional Director found the players were athletes—as compared to primary students—because of the lack of academic credit they received for football-related activities and the separation between the academic and athletic departments of the University.
Based on these findings, the Region determined the student athletes who receive grant-in-aid scholarships to be employees entitled to the protections of the NLRA and ordered an election to be held.
This decision is limited to private institutions and those players receiving scholarships that are not based on financial need or academic performance. As noted in the Decision and Direction of Election issued by the Region, only seventeen of the over one hundred and twenty universities with Division 1 collegiate football teams are private institutions. But, many state agencies that regulate public employee relations follow NLRB precedent.
Whatever happens next, the world of college sports has been turned upside down, at least for the moment. As the NY Times put it, “For decades, the major college sports have functioned on the bedrock principle of the student-athlete, with players receiving scholarships to pay for their education in exchange for their hours of practicing and competing for their university. But Peter Ohr, the regional N.L.R.B. director, tore down that familiar construct in a 24-page decision.”