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In January 2014, football players at the esteemed Northwestern University filed a petition with the National Labor Relations Board (“NLRB”) seeking representation by a labor union.  ESPN. The players asserted that the University-provided scholarships and the team’s control over them made them “employees” of the University entitling them to vote to be represented by a union.  Northwestern’s position was that the players are primarily students and not employees.  After a three-week hearing, on March 26, 2014 the NLRB’s Regional Director in Chicago affirmed a finding that Northwestern’s football players are employees and, as a result, are eligible to vote in an election for union representation.   Northwestern Decision.  Is this March madness NLRB-style?

How can student-athletes be employees?

The NLRB’s decision found that the “grant-in-aid” scholarships that the student-athletes receive from Northwestern were provided in return for valuable services provided by the players to the University.  Further, the University exerted “strict and exacting” control over the players’ schedules, academic studies, and even their private lives. Significantly, the players' scholarships were contingent on the players' adherence to the team rules and the time commitment to their team.  The NLRB concluded that the “football players who receive scholarships fall squarely” within the National Labor Relations Act’s definition of "employee."  In contrast, walk-on players, who do not receive scholarships and are under less¬ stringent university control, are not employees.

What does finding that the players are employees mean?

The Regional Director’s decision means that the scholarship players have the right to vote in a NLRB-supervised election to decide if they want to be represented by the College Athletes Players Association, which is supported by the United Steelworkers Union. 

What is the next step?

Northwestern has the right to and surely will request review of the decision by the full five-member National Labor Relations Board in Washington D.C.    The majority Obama-appointed NLRB has an aggressively liberal agenda, so the prospects for a different outcome at that level do not look promising. This matter is far from over, however, and other requests for review and appeals will certainly follow. 

What are the implications of this decision?

This decision has potential far-reaching implications for both college sports and employment law.  Many commentators will likely note that the decision and other pending litigation against the NCAA means that a change in the “amateur” nature of college sports is imminent.  That may or may not be the case.

But, what about the employment law implications? If the student-athletes are “employees,” have the hundreds of universities that provide athletic scholarships been violating numerous employment laws?  Should the schools in this weekend’s Sweet Sixteen have their players fill out timesheets to ensure that they are in compliance with the Fair Labor Standards Act?  Will "donning and doffing time" litigation ensue over time that athletes spend getting into and out of their uniforms, soaking in the training-room whirlpool, or answering the incisive questions of crack sports reporters? The nature of the relationship between the school and the student-athlete may be different than with the average student, but terming it an employment relationship seems to make the educational aspect trivial.  Which of course, makes no sense except at …(pick your school’s rival).