On March 26, 2014, Peter Sung Ohr, regional director of the National Labor Relations Board’s (NLRB’s) Region 13 in Chicago, ruled that certain Northwestern University football players are employees of the university and thus have the right to form a union and bargain collectively pursuant to the National Relations Labor Act (NLRA). In reaching this decision, Ohr determined that these players:
- Perform services for the benefit of Northwestern for which they receive compensation.
- Are subject to Northwestern’s control in the performance of their duties as football players (versus students).
- Fall within the common-law definition of “employee.”
The petitioner, College Athletes Players Association (CAPA), argued that college athletes fit within the broad definition of “employee” under the NLRA and should accordingly have the right to organize and bargain with their employer, Northwestern University. Among other things, Northwestern argued that the players’ primary role at the university is that of a student — not employee — and as such they should not have the right to form a union and bargain. In making this assertion, Northwestern cited the NLRB’s decision in Brown University, 342 NLRB 483 (2004), which held that graduate assistants were not “employees” after applying a test demonstrating that the overall relationship between graduate assistants and Brown was primarily educational, not economic.
Ohr distinguished the Northwestern petition from Brown University, finding that the college football players’ “football-related duties are unrelated to their academic studies unlike the graduate assistants whose teaching and research duties were inextricably related to their graduate degree requirements.” Specifically, Ohr determined that the football players are not “primarily students,” but instead athletes who are recruited for their athletic talent (and not their academic record) and spend more hours on their football duties than their studies. Ohr further opined that the players’ athletic duties do not constitute a core element of their educational degree requirements nor are they compensated in financial aid.
Ohr also struck down Northwestern’s remaining arguments, concluding that:
- The football players are not temporary employees within the meaning of the NLRA as their “employment is of a finite duration.”
- The petitioned-for-unit is appropriate because the football players are employees and the unit is not arbitrary (walk-on players are not employees, and thus a fractured unit cannot exist).
- CAPA is a labor organization within the meaning of the NLRA for the above-mentioned reasons.
Finally, Ohr ordered an immediate election to be conducted to include “all football players receiving football grant-in-aid scholarship and not having exhausted their playing eligibility employed by [Northwestern].”
Although this decision on college athletes likely will not affect most non-educational employers, all employers should pay close attention. The regional director’s decision likely was approved by the NLRB’s general counsel before it was issued and therefore provides valuable insight into the current board. Employers can expect similar expansive developments from the NLRB in areas that do, in fact, directly affect them.
Among other things:
- The regional director’s decision provides further evidence of the NLRB’s desire to expand its reach into new areas. Despite the existence of student-athletes throughout the NLRB’s existence, this represents the first time the NLRB has claimed that such unpaid athletes constitute statutory employees.
- The decision shows a continuing desire to take positions and issue rulings that the NLRB believes will receive significant publicity. Indeed, in a recent interview NLRB Chairman Pearce favorably noted the publicity received from the NLRB’s positions on social media.
- The decision presents another example of the NLRB’s willingness to disregard years of existing precedent.
- The decision demonstrates the current NLRB’s strong position in favor of unionization (and unions generally).
As this decision and numerous other recent pronouncements from the NLRB demonstrate, employers must pay close attention to NLRB developments. In the upcoming months, we expect significant decisions on such matters as an employer’s ability to control its e-mail system, an employer’s ability to control its property, and the relief available to employees and unions that file charges with the NLRB.
If you have questions about this recent development or other matters related to the NLRA or NLRB, please reach out to your McGuireWoods contact or a member of the firm’s traditional labor group.