What Potential Impact Could the Northwestern University Football Decision Have on Other Colleges and Universities?

March 31, 2014

Last week, 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 Labor Relations Act (NLRA). In reaching that decision, Ohr determined that the players: (1) perform services for the benefit of Northwestern for which they receive compensation; (2) are subject to Northwestern’s control in the performance of their duties as football players (versus students); and (3) fall within the common-law definition of “employee.” The decision that certain football players at Northwestern can unionize has left many colleges and universities wondering whether and how their athletic programs could be affected.

Ohr’s decision has not dramatically changed the landscape yet, as its scope is limited.

  1. The decision applies only to Northwestern football players who receive grant-in-aid scholarships.
  2. The decision may be appealed to the full NLRB in Washington, D.C.
  3. The NLRA applies only to private colleges and universities—not to public schools.

Further, the facts in the Northwestern case are distinguishable from those at many other colleges and universities. While Ohr determined that the football players at issue receive compensation (scholarships) in exchange for playing football, National Collegiate Athletics Association (NCAA) Division III schools do not give athletic scholarships. Therefore, students at Division III schools do not receive compensation for playing football or other sports, and not all athletes at Division I and II schools receive full or even partial athletic scholarships. In concluding that they are employees, Ohr also determined that the football players at Northwestern are not “primarily students,” but instead athletes who are recruited for their athletic talent (and not their academic record), and they spend more hours on their football duties than their studies. That rationale hardly applies to student-athletes at Division III schools, and would require a highly individualized analysis at Division I and II schools. Thus, Ohr’s decision could logically extend to only a limited number and type of schools and athletes. Left unaddressed in the decision are issues such as whether managers and trainers who put in the same hours as players would be covered, or how the analysis might apply to other scholarship positions on private college campuses.

Nevertheless, if college athletes are considered “employees” in general, then the following are among the issues that come into play:

  • Unionization
  • Wage and hour issues, including overtime pay issues (Ohr determined that Northwestern football players spend 50 to 60 hours per week engaging in football-related activities during training camp)
  • Workers’ compensation coverage
  • Title IX parity
  • Antidiscrimination (including antiharassment) and antiretaliation statutes regarding employment

If you have questions about this burgeoning area of the law, contact your regular McGuireWoods attorney, one of the firm’s education team members or a member of the firm’s traditional labor group.