Football players receiving grant-in-aid scholarships from Northwestern University filed a petition under Section 9(c) of the National Labor Relations Act to be considered employees of the University for the purposes of collective-bargaining. The Employer, Northwestern University, asserted that its football players receiving scholarships should not be labeled employees under the Act. The University, or “Employer”, also stated its players were temporary employees who are not eligible for collective bargaining. Finally, the Employer contended that the petitioned-for-unit was arbitrary and not appropriate for bargaining.

The hearing officer of the National Labor Relations Board found that players receiving scholarships from the University are employees under Section 2(3) of the Act and ordered that an election be conducted under the direction of the Regional Director for Region 13 in the following appropriate bargaining unit: Eligible to vote are all football players receiving 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 National Labor Relations Act.

The Board determined the University failed to carry its burden of establishing a justification for exclusion from the coverage of the National Labor Relations Act and failed to justify denying its scholarship football players employee status. The Board’s findings from this case are listed below:

The Board applied the common law test to determine that individuals are indeed statutory employees:

Players receiving scholarships to perform football-related services for the Employer under a contract for hire in return for compensation are subject to the Employer’s control and are therefore employees within the meaning of the Act.

1. Grant-in-Aid Scholarship Football Players Perform Services for the Benefit of the Employer for Which They Receive Compensation

The Employer’s football program generated approximately $235 million in revenue from 2003-2012 by means of ticket sales, merchandise and licensing agreements, and television contracts.

2. Grant-in-Aid Scholarship Football Players are Subject to the Employer’s Control in the Performance of Their Duties as Football Players

The players who receive scholarships are under strict and exacting control by their Employer throughout the year; the location, duration, and manner in which players carry out their football duties are all within the control of the football coaches.

3. The Employer’s Grant-in-Aid Scholarship Players are Employees Under the Common Law Definition

The Employer’s football players who receive scholarships fall squarely within the Act’s broad definition of “employee” when one considers the common law definition of “employee.” However, walk-ons do not meet the definition of “employee” because they are not compensated for the athletic services they perform.

The Board found that Brown University is not applicable in this case:

The Board concluded the relationship between the graduate assistants and their University was primarily an educational one. They believe the case is not applicable because the case involving the Employer’s football players is more similar to an economic relationship.

1. The Employer’s Grant-in-Aid Scholarship Football Players are not “Primarily Students”

The Employer’s scholarship players cannot be labeled as “primarily students” because they spend more time with their football duties than with their academic duties throughout the year.

2. Grant-in-Aid Scholarship Football Players’ Athletic Duties do not Constitute a Core Element of Their Educational Degree Requirements

The Employer’s scholarship players do not receive any academic credit for playing football, and they are not required to play football in order to obtain a degree.

3. The Employer’s Academic Faculty does not Supervise Grant-in-Aid Scholarship Players’ Athletic Duties

The Employer’s scholarship players in this case are in a different position than the graduate assistants since the academic faculty members do not oversee the athletic duties that the players perform. This critical distinction certainly lessens any concern that imposing collective bargaining would have a “deleterious impact on overall educational decisions” by the Employer’s academic faculty.

4. Grant-in-Aid Scholarship Players’ Compensation is not Financial Aid

The graduate assistants compensation in Brown University was not “pay for services performed” as it is with the Employer’s scholarship players. The graduate assistants simply received financial aid to attend the University.

The Board found the Employer’s grant-in-aid scholarships players are not temporary employees within the meaning of the Act.

Given the substantial length of players’ employment it is clear that they cannot be found to be temporary employees under Board law.

The Board found the petitioned-for-unit is an appropriate unit.

The Employer contended that the petitioned-for-unit is not an appropriate unit for two reasons: (1) the unit consists of scholarship players who are not employees; and (2) the unit is an arbitrary, fractured grouping that excludes walk-ons who share an overwhelming community of interest with the sought after unit. The board eliminated reason one by finding the Employer’s scholarship players are in fact “employees” under the Act. The board also dismissed reason two by stating that in the absence of finding that walk-on players are employees a fractured unit cannot exist, and the petitioned-for-unit is found to be an appropriate unit within the meaning of the Act.

The Board found the Petitioner is a labor organization with the meaning of the Act.

The Board ultimately found that all grant-in-aid scholarship players for the University’s football team who have not exhausted their playing eligibility are “employees” under Section 2(3) of the National Labor Relations Act. The Board also ordered an immediate election for eligible voters to determining whether or not they desire to be represented for collective Bargaining purposes by College Athletes Players Association.

This matter will certainly soon be appealed to the National Labor Relations Board.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.