California Labor &
Employment Law Blog
Mar 27, 2014

Real March Madness at the NLRB: NLRB Finds That Scholarship Football Players at Northwestern University Can Unionize

Topics: Union-Management Relations

Yesterday, Region 13 of the National Labor Relations Board issued a groundbreaking decision in holding that scholarship football players at Northwestern University are “employees” under the National Labor Relations Act and can be represented by a union, the College Athletes Players Association (CAPA), if they vote to do so.  The NLRB ordered an election to take place and ordered Northwestern to provide an Excelsior list of voters to the Board by April 2.  In reaching this conclusion, after analyzing the testimony of players, coaches and others, the Board held:

  1. The scholarship football players are not primarily students.
  2. The athletic activities of the scholarship football players do not constitute a core element of their educational degree.
  3. The athletic activities of the scholarship football players are supervised by individuals who are not members of the academic faculty and this fact militates against a finding that these individuals are merely students.

Based on these and other sub-factors described in detail in the decision, the Board concluded that the walk-on players were not employees, but that the scholarship players were employees and could participate in a union election.  This decision has the potential to cause major changes in the way college athletics are administered.  It is being closely watched not only by labor and employment law experts, but by colleges, the NCAA, ESPN and all sports media, and anyone with any interest in college athletics and/or amateur athletics.

Northwestern has already announced that it will appeal this decision to the entire National Labor Relations Board.  Under NLRB rules, this Board will only consider the appeal if Northwestern can establish one of the following conditions:

  1. That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, officially reported Board precedent.
  2. That the Regional Director’s decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of a party.
  3. That the conduct of the hearing or any ruling made in connection with the proceeding has resulted in prejudicial error.
  4. That there are compelling reasons for reconsideration of an important Board rule or policy.

This was a surprising ruling, as many experts expected that the CAPA was going to have a difficult time convincing the NLRB that the student-athletes were “employees” under the NLRA.   However, there is a long way to go before this becomes a reality.  Most expect vigorous appellate litigation by both sides, which will be well financed by interested parties.  In addition, it is reasonably likely that Congress may intervene and act to amend the NLRA in some way to make it clear that student-athletes are not covered.  Influential Republican Senator Lamar Alexander, who formerly was the President at University of Tennessee and served as the Secretary of Education under President George H.W. Bush has already weighed in on his outrage over the decision with a public statement:  “Imagine a university’s basketball players striking before a Sweet Sixteen game demanding shorter practices, bigger dorm rooms, better food, and no classes before 11 a.m. This is an absurd decision that will destroy intercollegiate athletics as we know it.”  We already know that President Obama is a big college basketball fan, so he may be more than willing to sign any bills to prevent college athletics from being turned on its head.

We will continue to keep you updated on this matter as it moves forward as there will certainly be more developments in the coming months.

About CDF

For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Mark S. Spring is the Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. He has been practicing labor and employment law in California for thirty years and was recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®. Spring’s practice is focused on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. Spring is licensed to practice in California as well as by the District Court of Hawaii, where he successfully tried a high profile same-sex sexual harassment case. Spring is also Chair of CDF’s Webinar Committee where he manages the firm’s monthly educational webinar series that the firm provides to clients and contacts.
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