Goooo Team…. er, Union?

Darrell VanDeusen
Darrell VanDeusen

Forget March Madness baby.  Here’s where things get interesting. The Chicago Region of the NLRB has announced its decision that Northwestern University football players are “employees” under the National Labor Relations Act, and that they can vote to unionize.   Northwestern University, 13-R-121359 (March 26, 2014).   The University has indicated its intent to appeal the decision to the full NLRB in Washington.

By way of background, a group called the College Athletes Players Association (CAPA), former Northwestern quarterback Kain Colter (funded by the Steelworkers union) worked to file a petition with the NLRB for an election to organize its football players. CAPA claims that the players receive grant-in-aid packages (known to most of us as “scholarships”) and are therefore employees who devote 50-60 hours a week to the job of football. The University’s response was that football players are student-athletes, with an emphasis on student. Given that most all of Northwestern’s players actually graduate (about 97%), that seems like a reasonable position.

But not to the NLRB. Following an evidentiary hearing, Regional Director Peter Ohr found that the University failed to carry its burden to prove that the players were not employees. He has ordered an election of the following bargaining unit: “Eligible to vote are all football players receiving football grant-in-aid scholarship and not having exhausted their playing eligibility employed by the Employer located at 1501 Central Street, Evanston, Illinois, but excluding office clerical employees and guards, professional employees and supervisors as defined in the Act.”

The issues that arise here are exceptionally pesky: Why just football players? There are all sorts of scholarship athletes at a college or university. Maybe the unit is too small.  Or, wait:  what about the non-scholarship athletes? So we have some players in the union and some players not in the union. THAT will be interesting (different work rules? class schedules? safety training?). The RD, by the way, specifically held that “walk-on” players are sufficiently different from scholarship players to permit this split. First, walk-ons don’t risk losing a scholarship; second, without a scholarship they are not employees.

Look, Division I athletics are a big deal, a big money maker, and big business for individual players, schools, the NCAA and corporate sponsors. A good argument can be made that the system is broken and needs repair. Just my opinion, but I cannot for the life of me (as a former college athlete and present labor lawyer) see how finding that scholarship athletes are employees and letting them unionize will solve anything.

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