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Region 13 of NLRB Concludes That Northwestern’s Scholarship Football Players are Employees under the National Labor Relations Act and Entitled to Organize and Bargain Collectively with the University — Part I of II

Posted in Sports Business and the Law

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In the first part of this two part blog I will outline the Region Director’s decision, and in part II discuss the potential consequences of the decision and why I think the Region made a mistake in directing an election among Northwestern University’s athletic scholarship football players to determine whether they wish to be represented by a union.

The Region directed the election based on its finding that the scholarship players, unlike the non-scholarship walk-ons, were employees under the National Labor Relations Act and hence eligible to organize and by distinguishing the instant case from Brown University wherein the Board found graduate assistants were primarily students and not employees and hence declined to direct an election.  In finding the scholarship players to be employees, the Region relied on the common law definition of employee — one 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.   The Region concluded that the scholarship players unlike the walk-on players were clearly employees because  the scholarship players performed football-related services for Northwestern under a contract for hire (the scholarship tender) in return for compensation (tuition, room, board, books and certain other expenses) and that the scholarship players were subject to the control of the coaches rules and control.

Next,  the Region distinguished the Northwestern scholarship players from Brown’s graduate assistants whom the Bush Board found were primarily students rather than employees and hence refused to  direct an election.  The Region distinguished the Northwestern scholarship players based on four points  First,  the Region concluded the scholarship players were not primarily students noting that the scholarship players spent considerably more time throughout the year on football-related duties than in class.  This contrasts with the Board in Brown which relied solely on the fact that the employees were students.  Second, the Region concluded that the scholarship football players relationship with the university was not an academic one as their athletic duties do not constitute a core element of  their educational degree requirements.  This is unlike the Brown graduate assistants who received academic credit for performing their duties and that for the majority these duties were a requirement for their degree.  Third, the Region distinguished Brown from Northwestern by noting that the athletic coaches and not the scholarship players academic faculty supervised the scholarship players work and consequently the players lacked a relationship with the faculty when performing their athletic duties.  Fourth, the Region distinguished the case from Brown by asserting that the scholarship was compensation and not financial aid.  The Region noted that the Brown Board concluded the graduate assistants scholarships were financial aid and not compensation because the graduate assistants received the same scholarship amount as the graduate fellows for whom no research or teaching was required and that  the  amount of compensation was not tied  to the quality of their work.

In contrast Northwestern never offers a football scholarship to a prospective student unless they intend to provide an athletic service to Northwestern and the scholarship can be immediately revoked if the player breaks the rules or voluntarily quits the team.  The Region noted that this differed from Northwestern’s walk-on players who might receive a needs based scholarship.  A walk-on player could quit the team and retain the scholarship.   The Region discounted the fact that the school administration had a role in deciding whether to cancel a scholarship, noting it happened only twice and both time the school followed the head coach’s recommendation.

Stay tuned for Part II wherein I discuss the decision’s impact.