In what could be a landmark ruling for college athletes, the Chicago regional office of the National Labor Relations Board recently decided that scholarship football players at Northwestern University are employees of the school and, accordingly, are eligible to form a players’ union. Northwestern stated immediately after the ruling that it will appeal to the full NLRB in Washington. Northwestern and the NCAA have both issued statements strongly opposing the decision. Their position is that college football players are primarily students, not employees.
However, the NLRB’s ruling was based upon its finding that Northwestern’s scholarship football players are first athletes, and then students, as their duties to the athletic program consume “more hours than many undisputed full-time employees work at their jobs . . .” In the ruling, NLRB regional director Peter Ohr described the responsibilities that the scholarship players must undertake in order to maintain their scholarships. They must disclose to coaches detailed information about the cars they drive and agree to abide by a strict social media policy. Upperclassman are permitted to live off-campus, but their leases are subject to review by Northwestern’s head coach. Players also must receive permission from the athletic department if they want to get a job outside of the football team, and they are prohibited from swearing in public, embarrassing the team, or profiting off their image or reputation.
This decision could make way for the scholarship players to vote by secret ballot whether to unionize and allow the College Athletes Players Association to collectively bargain on their behalf. If upheld, the ruling could result in dramatic and wide-reaching consequences. If the athletes were ultimately to win collective bargaining rights, things like lockouts and strikes, now characteristic of professional sports, could happen at the college level.
Significantly, this ruling applies only to private universities. Scholarship football players at public universities will not be able to rely upon this ruling in order to argue for unionizing their own teams, and would instead be subject to state labor law. Additionally, it is unclear what impact this decision might have on athletes who play in non-profitable sports programs, such as lacrosse and tennis, that are sometimes subsidized by football and basketball programs. Would those non-profitable teams shrink as a result? Further unclear is what the bargaining unit will consist of in this case. Are all scholarship athletes permitted to unionize, or just athletes whose sports bring in millions of dollars of revenue?
Another challenge concerning the bargaining unit is turnover. Students will eventually graduate and new students will enroll. Because of this, the bargaining unit will change dramatically each year. Who will represent these students? Will the scholarship athletes pay dues to the union? Finally, there is the inevitable question of taxes. According to the Washington Post, the full cost of tuition room, and board at Northwestern is around $63,000 per year. This puts the cost of a four-year scholarship at $252,000. If scholarship players are employees, is this amount taxable? And what about all of the other items these players get for free, such as gear, academic tutoring, medical care, and team meals?
Clearly, the NLRB’s ruling raises complex questions concerning student athletes and their role on private college campuses. We are likely several years away from a resolution, given the length of time required for an appeal to the full NLRB and to litigate potential lawsuits that will almost certainly arise.
Katie Cassidy Tranter is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.
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