By Steven M. Swirsky and Adam C. Abrahms
The Regional Director for the NLRB’s Chicago Region has found that football players at Northwestern University who receive scholarships are “employees” for purposes of the National Labor Relations Act. Some of the football players blindsided the University, NCAA and college athletics by filing a petition to be represented by the College Athlete Players Association (CAPA), a putative union funded and supported by the United Steelworkers union. As only "employees" are covered by the National Labor Relations Act, finding them to be employees was necessary before the a representation vote could be held.
The Decision, while finding walk-ones and non-scholarship players not to be employees, found the University to be the common law employer of team members who are on scholarship and have eligibility remaining are able to vote in an NLRB election to decide whether they want the CAPA to be their bargaining representative and represent them with in collective bargaining with the University. The parties’ post-hearing briefs, summarizing the facts and law each side argues are available.
The decision has the potential to totally upend college sports at private colleges and universities across the country. While the Regional Director’s decision is an important step in the legal process it is by no means the last word on the issue, The University will almost certainly request review of the decision by the NLRB in Washington, DC.
If the Board agrees with the Regional Director, the vote takes place and CAPA wins the election and is certified as the players’ bargaining agent, Northwestern would be able to have the ruling considered by the US Court of Appeals by refusing to bargain. The Court, and this could be either the Seventh Circuit in Chicago of the DC Circuit in Washington, would review the law and the facts and decide whether the NLRB was right or wrong in finding that the relationship between the student-athletes and their university is an employment relationship or not.
Either way the consequence are not limited to either football or the National Labor Relations Act. If team members are held to be employees for purposes of this law, the ball has been teed up as well as to whether they should also be considered employees for purposes of wage and hour laws, workers compensation law, benefits plans and a list as long as a football field.
An important takeaway from this case and the union’s efforts at Northwestern is that not only is labor more than willing to give it the old college try by throwing out the existing playbooks, but that it is looking at groups who employers have long taken for granted as being either unable or unwilling to organize.