|April 3, 2014|
Previously published on March 28, 2014
In a decision sure to send huge ripples throughout the world of collegiate sports—and elsewhere—the National Labor Relations Board’s Chicago office sided with football players at Northwestern University who said they were employees and deserve to have a union if they want one.
Historically, the Board has not been shy about expanding its jurisdiction over workers who do not fit the traditional mold of an employee, but in this case the Board through its regional director in Chicago has gone further than ever. In essence, the regional director said that the University’s football players who receive scholarships in return for playing football bring in substantial economic and other benefits for the school. In other words, while the players do not receive a paycheck, they get paid for their services—and that makes them employees. The regional director relied on the fact that, regardless of financial need, the University recruits and provides scholarships to certain players. Plus, the regional director noted the remarkable degree of control Northwestern coaches have over the players’ daily lives—e.g., how they behave, where they live, what they drive. In fact, the regional director went so far as to say that the students are primarily employees and only secondarily students. Interestingly, walk-ons—players not recruited by the University—do not receive a scholarship and thus the regional director concluded they are not employees and not entitled to union representation, even though they perform the same “work” as the other players.
Technically, the decision affects only private colleges and universities (and other non-public workplaces) because the Board does not regulate the public sector. But many states have their own labor boards and so even public institutions in those states could see attempts to organize among college and university students who receive scholarships in return for which they must “work.”
Clearly, private colleges and universities all over the country which extend athletic scholarships should follow this case closely. But the case has implications beyond athletics. For example, can band members organize where a school recruits a musician, gives the student a scholarship, and stipulates that the student must perform in a school orchestra? What if the student tutors other students? If the Northwestern regional director decision stands, other students on scholarship will likely become eligible for union representation if their scholarship requires some quid pro quo other than simply going to school.
This decision could also have implications beyond the academic world. The National Labor Relations Act (“NLRA”) makes clear that employees have the right to organize. The NLRA also makes clear that employers cannot (a) threaten any employee over union support; (b) question employees about attempts to unionize; (c) make promises to employees while a union campaign is underway; or (d) spy on employees or union workers attempting to unionize.
The Board’s Chicago office has created many questions about how employers should engage or manage employees with regard to students, volunteers, and interns. Receiving a paycheck with taxes deducted and getting a W-2 at the end of the year is clearly not the sine qua non of employee status in the eyes of the Labor Board. For example, interns, including students who are interns, have received much attention recently because of rulings that they should be paid when their duties are essentially those of employees—they would be a group arguably now encompassed by the Northwestern decision if it is upheld.
The issue is the definition of an “employee.” This case gives the Board an opportunity to vastly expand that definition—vastly expanding the ranks of potential union members throughout workplaces in every industry.
We can be sure this issue is far from being resolved. The University can—and likely will—appeal the regional decision to the presidentially-appointed Board in Washington, and if the Board upholds the regional director, there will be an election. Assuming the players vote for a union, the University would be obligated to negotiate a contract (“hey coach, I already ran the ball this quarter, I don’t have to run it again!). Or the University can refuse to bargain which will force the issue of whether college football players are employees into the courts. Stay tuned.