On January 28, 2014, the National College Players Association, on behalf of a group of Northwestern University football players, filed a petition with the National Labor Relations Board (“NLRB”) seeking to form a union. While the college pay-for-play debate is well documented, a request for union representation by such athletes is unprecedented. There is no denying that collegiate athletics, with its TV revenue, licensing fees, merchandising, and ticket sales, has become a multi-billion-dollar industry. However, NU players claim that their central concerns are related to health, education, and other basic rights, not salaries – at least not yet. In an official statement released by Northwestern, the University has taken the position that, while it is “proud of [its] students for raising these issues,” not only are student-athletes students, not employees, collective bargaining would “not advance the discussion” of relevant topics. If college football players get recruited, much like corporate executives, get paid in the form of scholarships, and spend 40+ hours a week in training or games, what more do they need to be considered employees?
Though this is the first time a group of college athletes has petitioned the NLRB for unionization, the Board has addressed a somewhat similar issue. For a little over a decade, the NLRB has flip-flopped on the issue of whether graduate students at private universities, who often serve as teaching or research assistants in return for a stipend, tuition remission, or both, can be considered “employees” under the National Labor Relations Act (“NLRA”).[i] In 2000, the NLRB, overturning decades of precedent, granted graduate students in private universities the right to unionize.[ii] However, this decision was overruled four years later when the Board concluded that, “graduate student assistants  are primarily students and have primarily an educational, not economic, relationship with their university.”[iii] In 2011-12, it seemed like the NLRB was poised to overrule Brown when one of its Regional Directors upheld Brown but stated that some graduate students have “a dual relationship” that is “both academic and economic” and “does not necessarily preclude a finding of employee status.” That decision was appealed and the NLRB agreed to reconsider the Brown ruling; the appeal was withdrawn in November 2013 after the parties agreed to a compromise. While Brown may appear to have strong precedential value for the NU case, there are two of key distinctions that could make all the difference: (1) it has been reported that Division I athletes spend more time on sports than academics, so, unlike graduate student TAs, the players’ “principal time commitment” could very well be football; and (2) playing football is not “part and parcel of the core elements” of the player’s undergraduate studies, unlike the teaching and research requirements of a PhD candidate.
The NLRA’s broad definition of an employee has been a source of debate for many years.[iv] The Supreme Court has held that in defining and applying the term under the NLRA, the NLRB “must bring to its task an appreciation of economic realities . . . This does not mean that it should disregard the technical and traditional concepts of ‘employee’ and ‘employer.’ But it is not confined to those concepts. It is free to take account of the more relevant economic and statutory considerations.”[v] As the Seventh Circuit Court of Appeals has recognized, “[i]n determining who is included within a defined term in the Act, the [NLRB] is accorded a substantial amount of discretion.”[vi] In The Myth of the Student-Athlete: The College Athlete as Employee, the authors argue that college athletes are “employees” both in the common law sense of the term and under Brown because: “they are compensated for their services with athletic scholarships . . . are subject to a pervasive level of control by their employers on which they are also economically dependent . . . [and] because their relationships with their universities are not primarily academic; they are overwhelmingly commercial.”[vii]
In passing the NLRA, Congress was primarily concerned with the impact that “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association” would have on interstate commerce.[viii] All professional sports, with a well-known and controversial exception for baseball, are subject to federal antitrust law due to the “volume of interstate business involved.”[ix] College football athletes, like NFL players, travel between states to play, have their games broadcast on national television, and have merchandise with their name and likeness sold across state lines. Again, it is hard to argue that college sports are not engaged in interstate commerce when the industry’s worth is in the multi-billion-dollar range.
While a plain reading of the statute appears to lend support to the player’s arguments, the NCAA’s rules on amateurism may make it almost impossible for unionized college athletes to get a seat at the table. A hearing to determine whether the players are “employees” under the NLRA, and thus eligible to form a union, will take place on February 12, 2014 at the NLRB’s Chicago office. Regardless of the decision reached, it will most likely be appealed to the full Board in Washington, DC; a DC ruling can then be appealed in the federal courts. At this time, only one thing is certain, the Wildcats are in the first quarter of a legal battle that will probably drag on for years.
[ii] New York Univ., 332 NLRB 1205 (2000).
[iii] Brown Univ., 342 NLRB 483, 489 (2004).
[iv] “The term "employee" shall include any employee . . . but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.” National Labor Relations Act, 29 U.S.C. § 152.
[v] N.L.R.B. v. E.C. Atkins & Co. 331 U.S. 398, 403 (1947).
[vi] N.L.R.B. v. Berger Transfer & Storage Co., 678 F.2d 679, 687 (7th Cir. 1982).
[vii] Robert A. McCormick, Amy Christian McCormick, The Myth of the Student-Athlete: The College Athlete As Employee, 81 Wash. L. Rev. 71, 155 (2006).
[ix] Radovich v. Nat'l Football League, 352 U.S. 445, 452 (1957).