Are University Football Players Employees?

The University argued that under the NLRB's decision in Brown University, 342 NLRB 483 (2004), which addressed the employment status of graduate student assistants, the football players are not employees. In perhaps the most interesting aspect of the Regional Director's decision, he first applied a common-law test to reach the conclusion that the football players are, in fact, employees. He concluded that the amount of control exercised by non-academic employees of the University, specifically the football coach who is not a member of the faculty, was similar to the control exercised by common-law employers. Evidence of this control included:

• The fact that football players are not considered for admission unless and until they are recruited by the head coach;
• The “tenders,” or contracts, that set forth a host of rules by which players must abide to maintain their scholarships, their “compensation” for the services they provide to the University, and the control exercised by coaches “over nearly every aspect of the players' private lives” under threat of sanction (i.e., loss of scholarships) if they violate rules or lose their eligibility;
• The large number of hours devoted to football-related activities (40-50 hours per week, during the season, 50-60 hours per week during training camp); and
• The fact that players under scholarship may not miss practice or games to attend class ' a fact that in one instance led a player to alter his educational plans because he was discouraged from pursuing a pre-med curriculum.

Ohr also determined that the football players were employees after considering the four factors upon which the NLRB relied in Brown University: 1) the status of graduate assistants as students; 2) the role of the graduate student assistantships in graduate education; 3) the graduate student assistants' relationship with the faculty; and 4) the financial support the graduate student assistants receive to attend the university.

Ohr distinguished the Northwestern University football players from the Brown University graduate student assistants on all four counts. (Ohr noted, but clearly was not persuaded by, the University's high academic standards: Northwestern football players have a cumulative grade point average of 3.024 and a 97% graduation rate. His analysis surely will send a powerful message to universities who are not so rigorous in upholding the “student” half of the “student-athlete” equation.)

First, he determined that although the football players are students, and must be students to be eligible to play football, they are not “primarily students,” largely because of the significant number of hours they devote to football-related activities. Ohr concluded that “it cannot be said that they are 'primarily students' who 'spend only a limited number of hours performing their athletic duties.'”

Next, Ohr concluded that Northwestern's football program does not constitute a “core element” of their education. The football players do not receive any academic credit for playing football, nor are they required to play football in order to obtain their undergraduate degrees. This distinguishes the football players from graduate student assistants, who are required to teach to complete their program requirements.

Turning to the football players' relationships with University faculty, Ohr also distinguished the circumstances of the football players, on the one hand, and the graduate students in Brown University, on the other hand, because the football program is not directed by faculty members. Thus, he determined that allowing the football players to organize would not “'have a deleterious impact on overall educational decisions.'”

Finally, the Regional Director distinguished the financial aid received by Brown University's graduate students from the grant-in-aid provided to Northwestern's football players. (He excluded from the bargaining unit walk-on football players who do not receive grant-in-aid.) He found a compelling distinction in the fact that the football players are not offered scholarships unless they plan to play football and they may lose their scholarships if they voluntarily withdraw from the team. In contrast, the graduate students in Brown University received the same compensation as graduate fellows who were not required to teach.

The University argued that if the football players are employees, they are temporary employees due to their limited tenure. Relying on established precedent, including Boston Medical Center, 330 NLRB 152 (1999), Ohr fairly readily dispatched that argument.

The Appropriateness of the Bargaining Unit

CAPA filed its petition on behalf of football players receiving grant-in-aid only, and the University challenged the appropriateness of the proposed bargaining unit. Relying on the NLRB's decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83, slip op. at 1 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), Ohr found that the University failed to meet its burden of showing that the petitioned-for unit is not appropriate. Specifically, he determined that the walk-on players who are not subject to all of the rigorous requirements to which players receiving scholarships must adhere, do not share an “overwhelming community of interest” with players who do receive grant-in-aid. In particular, they do not face the threat of having lose “up to the equivalent of a quarter million dollars in scholarship” if they do not play football.

CAPA Is a Labor Organization Within the Meaning of the NLRA

The final argument raised by the University was that CAPA is not a labor organization. The University argued that CAPA was not a labor organization within the meaning of the NLRA, unless: 1) the football players were employees; and 2) the petitioned-for unit was an appropriate unit. Having decided these issues against the University, it was a foregone conclusion that Ohr would also conclude that CAPA is a labor organization within the meaning of the NLRA.

Conclusion: The Broader Implications for Higher Education

The Regional Director's decision is highly controversial, and, some would argue, fundamentally misapprehends the very nature of tuition, scholarships and the student-university relationship (and, perhaps, that of wages, work and the employee-employer relationship). If it stands, it should strike fear into the hearts of universities and businesses that partner with them, because what it reminds us is that the NLRB views the student vs. employee question as a continuum and not a dichotomy. In its most recent pronouncements (Brown University), the NLRB has said that students who teach (TAs, fellows, student assistants) are primarily students rather than employees and may not unionize, while house staff (or house officers) in hospitals, such as residents and interns, may unionize (Boston Medical Center). Ohr relied upon that latter decision (in part) when he reached his decision about Northwestern's football players. And he distinguished the situation of the student assistants when he said that the football players were not primarily students.

Clearly, the move to unionize college football players is driven by the economics of collegiate athletics. And, every day, students receiving scholarships participate in activities that generate significant revenue for their universities. In addition to teaching, and caring for patients in hospitals, students conduct sophisticated research in agriculture, biotechnology, information technology, medical devices, and genetics, to name a few. Examples include the water technology incubator at Fresno State University in California's San Joaquin Valley, Stanford University's StartX technology incubator, and the development of the synthetic yeast chromosome at Johns Hopkins University.

The fact that these are, or may become, money-making enterprises does not per se make the students employees. But there is some point on the student/employee continuum where students working in these programs look more like employees, or at least where some union might say that they do.

Academic medical centers, university research programs, and participants in initiatives where commerce and academia meet would be well-advised to review grant-in-aid and other program requirements to determine whether they establish any of the indicia of common law employment identified by the Regional Director in the Northwestern case. University human resources and labor relations specialists should be prepared to respond to (or, better, to prevent) organizing activity in the student ranks. Finally, private industry working with universities may want to prepare for unionizing efforts that may affect their relationships with students upon whom they rely for research and development.

The Northwestern football players who seek to unionize may long since have graduated if, as expected, the appeals process continues to the U.S. Supreme Court. That may be the larger irony of this case ' that students who have no connection to collegiate sports may feel more immediate effects of the decision. Clearly, universities and their private sector partners will need to pay heed.

Ellen Shadur Gross is a partner with BakerHostetler in Los Angeles. Marc Antonetti is a partner with the firm's Washington, DC office.

In a move that has surprised many, but not all, NLRB-watchers and collegiate football fans, Chicago-area NLRB Regional Director Peter Sung Ohr has determined that Northwestern University football players who receive grant-in-aid are employees of the University and an appropriate bargaining unit. Based upon those findings, he has directed an election at some time and place to be determined.

Ohr's written decision addressed three separate arguments raised by the University in opposition to the petition filed by the College Athletes Players Association (CAPA), which is seeking to represent the players.

Football Players Are Employees Too

The University argued that under the NLRB's decision in Brown University, 342 NLRB 483 (2004), which addressed the employment status of graduate student assistants, the football players are not employees. In perhaps the most interesting aspect of the Regional Director's decision, he first applied a common-law test to reach the conclusion that the football players are, in fact, employees. He concluded that the amount of control exercised by non-academic employees of the University, specifically the football coach who is not a member of the faculty, was similar to the control exercised by common-law employers. Evidence of this control included:

• The fact that football players are not considered for admission unless and until they are recruited by the head coach;
• The “tenders,” or contracts, that set forth a host of rules by which players must abide to maintain their scholarships, their “compensation” for the services they provide to the University, and the control exercised by coaches “over nearly every aspect of the players' private lives” under threat of sanction (i.e., loss of scholarships) if they violate rules or lose their eligibility;
• The large number of hours devoted to football-related activities (40-50 hours per week, during the season, 50-60 hours per week during training camp); and
• The fact that players under scholarship may not miss practice or games to attend class ' a fact that in one instance led a player to alter his educational plans because he was discouraged from pursuing a pre-med curriculum.

Ohr also determined that the football players were employees after considering the four factors upon which the NLRB relied in Brown University: 1) the status of graduate assistants as students; 2) the role of the graduate student assistantships in graduate education; 3) the graduate student assistants' relationship with the faculty; and 4) the financial support the graduate student assistants receive to attend the university.

Ohr distinguished the Northwestern University football players from the Brown University graduate student assistants on all four counts. (Ohr noted, but clearly was not persuaded by, the University's high academic standards: Northwestern football players have a cumulative grade point average of 3.024 and a 97% graduation rate. His analysis surely will send a powerful message to universities who are not so rigorous in upholding the “student” half of the “student-athlete” equation.)

First, he determined that although the football players are students, and must be students to be eligible to play football, they are not “primarily students,” largely because of the significant number of hours they devote to football-related activities. Ohr concluded that “it cannot be said that they are 'primarily students' who 'spend only a limited number of hours performing their athletic duties.'”

Next, Ohr concluded that Northwestern's football program does not constitute a “core element” of their education. The football players do not receive any academic credit for playing football, nor are they required to play football in order to obtain their undergraduate degrees. This distinguishes the football players from graduate student assistants, who are required to teach to complete their program requirements.

Turning to the football players' relationships with University faculty, Ohr also distinguished the circumstances of the football players, on the one hand, and the graduate students in Brown University, on the other hand, because the football program is not directed by faculty members. Thus, he determined that allowing the football players to organize would not “'have a deleterious impact on overall educational decisions.'”

Finally, the Regional Director distinguished the financial aid received by Brown University's graduate students from the grant-in-aid provided to Northwestern's football players. (He excluded from the bargaining unit walk-on football players who do not receive grant-in-aid.) He found a compelling distinction in the fact that the football players are not offered scholarships unless they plan to play football and they may lose their scholarships if they voluntarily withdraw from the team. In contrast, the graduate students in Brown University received the same compensation as graduate fellows who were not required to teach.

The University argued that if the football players are employees, they are temporary employees due to their limited tenure. Relying on established precedent, including Boston Medical Center, 330 NLRB 152 (1999), Ohr fairly readily dispatched that argument.

The Appropriateness of the Bargaining Unit

CAPA filed its petition on behalf of football players receiving grant-in-aid only, and the University challenged the appropriateness of the proposed bargaining unit. Relying on the NLRB's decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83, slip op. at 1 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB , 727 F.3d 552 (6th Cir. 2013), Ohr found that the University failed to meet its burden of showing that the petitioned-for unit is not appropriate. Specifically, he determined that the walk-on players who are not subject to all of the rigorous requirements to which players receiving scholarships must adhere, do not share an “overwhelming community of interest” with players who do receive grant-in-aid. In particular, they do not face the threat of having lose “up to the equivalent of a quarter million dollars in scholarship” if they do not play football.

CAPA Is a Labor Organization Within the Meaning of the NLRA

The final argument raised by the University was that CAPA is not a labor organization. The University argued that CAPA was not a labor organization within the meaning of the NLRA, unless: 1) the football players were employees; and 2) the petitioned-for unit was an appropriate unit. Having decided these issues against the University, it was a foregone conclusion that Ohr would also conclude that CAPA is a labor organization within the meaning of the NLRA.

Conclusion: The Broader Implications for Higher Education

The Regional Director's decision is highly controversial, and, some would argue, fundamentally misapprehends the very nature of tuition, scholarships and the student-university relationship (and, perhaps, that of wages, work and the employee-employer relationship). If it stands, it should strike fear into the hearts of universities and businesses that partner with them, because what it reminds us is that the NLRB views the student vs. employee question as a continuum and not a dichotomy. In its most recent pronouncements (Brown University), the NLRB has said that students who teach (TAs, fellows, student assistants) are primarily students rather than employees and may not unionize, while house staff (or house officers) in hospitals, such as residents and interns, may unionize (Boston Medical Center). Ohr relied upon that latter decision (in part) when he reached his decision about Northwestern's football players. And he distinguished the situation of the student assistants when he said that the football players were not primarily students.

Clearly, the move to unionize college football players is driven by the economics of collegiate athletics. And, every day, students receiving scholarships participate in activities that generate significant revenue for their universities. In addition to teaching, and caring for patients in hospitals, students conduct sophisticated research in agriculture, biotechnology, information technology, medical devices, and genetics, to name a few. Examples include the water technology incubator at Fresno State University in California's San Joaquin Valley, Stanford University's StartX technology incubator, and the development of the synthetic yeast chromosome at Johns Hopkins University.

The fact that these are, or may become, money-making enterprises does not per se make the students employees. But there is some point on the student/employee continuum where students working in these programs look more like employees, or at least where some union might say that they do.

Academic medical centers, university research programs, and participants in initiatives where commerce and academia meet would be well-advised to review grant-in-aid and other program requirements to determine whether they establish any of the indicia of common law employment identified by the Regional Director in the Northwestern case. University human resources and labor relations specialists should be prepared to respond to (or, better, to prevent) organizing activity in the student ranks. Finally, private industry working with universities may want to prepare for unionizing efforts that may affect their relationships with students upon whom they rely for research and development.

The Northwestern football players who seek to unionize may long since have graduated if, as expected, the appeals process continues to the U.S. Supreme Court. That may be the larger irony of this case ' that students who have no connection to collegiate sports may feel more immediate effects of the decision. Clearly, universities and their private sector partners will need to pay heed.

Ellen Shadur Gross is a partner with BakerHostetler in Los Angeles. Marc Antonetti is a partner with the firm's Washington, DC office.