Earlier this year, the Regional Director of Region 13 of the NLRB found that scholarship football players at Northwestern University are “employees” under Section 2(3) of the National Labor Relations Act. Northwestern University v. College Athletes Players Association, Case 13-RC-121359 (N.L.R.B. Mar. 26, 2014).

The Regional Director’s decision turned largely on the amount of control exerted by the University and coaching staff on the scholarship players, which the Regional Director viewed as equivalent to the control exercised by employers over their employees.

The Regional Director held that in return for their “valuable” football services, the scholarship players received benefits valued up to $76,000 per calendar year, including tuition, housing, and health insurance. Id. at 14.

Following the Regional Director’s decision, the scholarship football players held an election last month, but the results of that election will not be released until the appeals process has finished.

Northwestern University appealed the Regional Director’s decision, vigorously contesting the Regional Director’s application of the law and presentation of the facts. The Regional Director’s decision relied heavily on the testimony of one key witness for the Union, a former scholarship football player, largely to the exclusion or minimization of other evidence.

Following Northwestern University’s appeal, the full Board of the NLRB has decided to hear the appeal. The NLRB has set a briefing schedule for the parties.

It has also set a briefing schedule for amici, and it proposed six questions which amici may address. These questions are broad and could have implications far beyond the context of scholarship football players:

  1. What test should the Board apply to determine whether grant-in-aid scholarship football players are “employees” within the meaning of Section 2(3) of the Act, and what is the proper result here, applying the appropriate test?
  2. Insofar as the Board’s decision in Brown University, 342 NLRB 483 (2004), may be applicable to this case, should the Board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis?
  3. What policy considerations are relevant to the Board’s determination of whether grant-in-aid scholarship football players are “employees” within the meaning of Section 2(3) of the Act and what result do they suggest here?
  4. To what extent, if any, is the existence or absence of determinations regarding employee status of grant-in-aid scholarship football players under other federal or state statutes or regulations relevant to whether such players are “employees” under the Act?
  5. To what extent are the employment discrimination provisions of Title VII, in comparison to the antidiscrimination provisions of Title IX of the Education Amendments Act of 1972, relevant to whether grant-in-aid scholarship football players are “employees” under the Act?
  6. If grant-in-aid scholarship football players are “employees” under the Act, to what extent, if any, should the Board consider, in determining the parties’ collective bargaining obligations, the existence of outside constraints that may alter the ability of the parties to engage in collective bargaining as to certain terms and conditions of employment? What, if any, should be the impact of such constraints on the parties’ bargaining obligations? In the alternative, should the Board recognize grant-in-aid scholarship football players as “employees” under the Act, but preclude them from being represented in any bargaining unit or engaging in any collective bargaining, as is the case with confidential employees under Board law?

Northwestern University, et al., National Labor Relations Board, Case Number 13-RC-121359.

The Board has invited amici interested in any of these questions to file briefs by July 3, 2014. Id.

We anticipate that the Board’s answers to these questions could have a strong influence on college athletics, academic scholarships, and beyond.

Leave a Reply

Your email address will not be published. Required fields are marked *