College Football Players Can Unionize Says NLRB Regional Director
Did you know that college football players are not “primarily students”? Well, not if the students are football players on regimented schedules, who receive grant-in-aid scholarships to play football from which their school profits, according to a Regional Director at the National Labor Relations Board. In a decision issued yesterday, the Regional Director concluded that Northwestern University football players who receive scholarships are statutory employees under the National Labor Relations Act, and, therefore, directed an election for the players to decide whether to unionize in light of a petition a union recently filed to represent them. The Regional Director relied upon the common law definition of an employee in rendering his decision, finding that: the school’s interest in the students initially stems from their football talents; letters the University sends them offering scholarships to play football (called tenders) are contracts; the school controls the players through rules and regimented workout and playing schedules; and the scholarships the players receive are compensation that cover living expenses. The Regional Director distinguished the case from Board precedent finding that graduate students are not statutory employees, by reasoning that football is unrelated to the students’ academics unlike the case involving the graduate students.
The University certainly will appeal the Regional Director’s decision to the new five-member National Labor Relations Board in Washington, DC, and, if the Board upholds the decision, there will be a valid election. (If the NLRB grants the University’s request to formally review the Regional Director’s decision, but does not stay the election pending the review, the Board only will count the ballots if it upholds the Regional Director’s decision.) Should the union win the election, the University could refuse to recognize the union in order to appeal the Board’s decision to a federal court. The Regional Director’s decision applies only to private universities, as the Board does not have jurisdiction over public universities.
The Northwestern University decision is just the latest of a series of concerted efforts to expand the NLRB’s role into traditionally non-union areas. As previously discussed on the Employment Law Alert, for the first time in history, the NLRB is: aggressively challenging workplace polices of non-union businesses (e.g., at-will disclaimers and social media policies); contesting discipline and discharge of non-union employees (e.g., terminations for protected concerted cyber activities on Facebook); attempting to force non-union companies to post a notice in the workplace advising its workers of their rights to unionize; and promulgating rules to speed up the union election process, which could leave businesses insufficient time to communicate with their workers about unions so as to ensure the workers make an informed decision (and piggybacks off a Board decision involving so-called “micro” units that make it easier for unions to select the workers who can vote in a union election).