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No paydirt yet: Northwestern players have ground to cover before unionization

Last week, we brought you an article about the UAW losing a recent election at VW and how it may be a sign of the end for the union. As unions struggle in some traditional areas, they are reaching out into previously uncharted territory, making headlines this week with the story of college football players at Northwestern who want to unionize.

by Kevin C. McCormick

On January 28, a group of football players at Northwestern University filed a union election petition with the National Labor Relations Board (NLRB) in Chicago. On Wednesday, March 26, 2014, the Board ruled that certain student athletes are employees entitled to a union election. This is the first time college athletes have sought to unionize under the National Labor Relations Act (NLRA), and this ruling could change college athletics forever. 

Students or employees?
The petition to unionize was filed by the National College Players Association (NCPA) with the backing of the United Steelworkers. According to the NCPA, student athletes who receive scholarships should be considered employees under the NLRA because they are under the control of the college, receive payment in the form of scholarships, and generate millions of dollars in revenue for their respective universities. The NCAA prohibits the payment of direct stipends to student athletes, who are only entitled to receive scholarships for tuition, room and board, and other living expenses.

While no one doubts that certain college athletes at top Division I schools are well treated in terms of scholarships and other assistance, those athletes are still considered students who are attending college presumably to obtain a degree. Indeed, in the decision issued by the regional director directing an election, he acknowledged that the Northwestern football players had a cumulative grade point average of 3.024 and a graduation rate of 97%. Those same players had an Academic Progress Rate (APR) of 996 out of 1000 and the players’ graduation rate and their APR both rank first in the country among football teams. Moreover, the players have about 20 different declared majors, with some going on to medical school, law school, and careers in the engineering field after receiving their undergraduate degree.

NLRB regional director says grant-in-aid players are employees
Despite those impressive statistics, the regional director nevertheless found that those football players who received grant-in-aid scholarships of up to $76,000 per year (which are not considered income by the IRS) are really employees for a number of reasons, none of which seem to make any sense. First, the regional director found that the football players were subject to “special rules” that limited their ability to live on or off campus, that they had to disclose to the coaching staff information as to the type of car they drive, the need to comply with a social media policy or limited their ability to give media interviews that were not approved by the Northwestern Athletic Department.

The players also were prohibited from swearing in public and were required to sign a release permitting Northwestern and the Big Ten Conference to utilize their name, likeness, and image for any purpose. Finally, the players were subject to strict drug and alcohol policies, required to dress appropriately for games, keep up their GPAs, and if they were late for practice, had to spend time in the study hall. How do these “special rules” establish that the grant-in-aid football players are employees, as compared to the rest of the student body at Northwestern? In his decision, the regional director offers no helpful insight.

The regional director also believed that based on the amount of time the football players devoted to their sport, which was considerable, that fact was another factor that established that the grant-in-aid players were employees, and not students who were committed to being the best in their sport. We all know that to be successful in any endeavor, it takes a lot of sweat and hard work. However, the fact that Northwestern has harnessed that effort to produce a successful football team does not demonstrate that the grant-in-aid players are employees.

If that were true, then the walk-on players who do not receive any scholarships and work just as hard as their grant-in-aid teammates should also be considered employees, correct? Not according to the regional director. According to his analysis, despite their equal effort, only the grant-in-aid players are employees because they receive scholarships and the walk-ons do not.

Next, the regional director attached great significance to the fact that Northwestern spent considerable time recruiting the top grant-in-aid players, suggesting that the only criterion for admission was their football prowess. However, in his decision, the regional director acknowledged that all prospects had to be approved by the Admissions Office. If they were not deemed admissible, then the recruiting efforts ceased.

If Northwestern was simply interested in recruiting the best players to work for the University, why was there a need for the Admissions Office to be involved in that decision at all? Moreover, there was ample evidence to demonstrate that once a grant-in-aid player was admitted to Northwestern, he had to maintain a specific grade average to remain on the team. Again, if the grant-in-aid players were employees, why were they required to keep up their grades?

There was testimony from Kain Colter, a senior quarterback who initiated the union drive at Northwestern, that he had aspirations to go to medical school but changed his mind because he had scheduling conflicts with a required chemistry class and his football practice schedule. Ultimately, he decided to switch his major to psychology, which he believed was less demanding.

Is Colter the only college student to change his major while in school? To take a less demanding schedule? More importantly, there was no evidence that Colter was directed to switch majors because he was on the football team. For a lot of reasons, including personal ones, he made that decision, as do countless other undergrads. That fact does not, however, suggest, let alone establish, that he was an employee and not a typical student.

Despite these clear facts, the regional director nevertheless found that the grant-in-aid football players at Northwestern were employees, entitled to the protections of the NLRA. To reach this conclusion, the regional director made a number of findings that hopefully will be reversed on appeal as they are not supported logic or the facts.

Regional director’s findings
First, the regional director adopts an incredibly broad definition of who is an employee under the NLRA. He then concludes that since players who receive scholarships to perform football-related services are under a “contract for hire” in return for compensation and are subject to Northwestern’s control, they are employees under the NLRA.

Then, he concludes that the grant-in-aid players are not primarily students, based in large part on his assessment that they spend too much time on athletics as compared to academics. In reaching that conclusion, he ignored his own findings that Northwestern players have a 97% graduation rate, ranking first in the country among football teams.

Obviously, the fact that the grant-in-aid players are able to successfully complete their classwork while playing football demonstrates that they do spend enough time on their academic studies, despite a rigorous athletic commitment. The regional director didn’t explain how that undeniable fact suggests that the players are employees and not students.

Finally, the regional director attempted to distinguish a prior NLRB decision that found that graduate students at Brown University weren’t statutory employees under the NLRA because they primarily had an educational rather than an economic relationship with the school. Graduate students receive stipends directly from Brown to help defray the cost of their education at the private university. According to the regional director, the grant-in-aid provided to the football players was compensation and not financial aid.

What’s next?
Northwestern has announced that it will appeal the regional director’s decision to the NLRB in Washington, D.C. That appeal is due on or before April 9, 2014. No doubt, once an appeal is filed, the Board will take some time to review the regional director’s decision. Depending on the results of that decision, an appeal to the U.S. Court of Appeal or the U.S. Supreme Court may follow. It is not likely that a secret ballot election will be scheduled in the near future.

Then, if it is ultimately determined that the grant-in-aid football players are employees and entitled to vote for a union in a secret ballot NLRB election, Northwestern would be allowed to explain to the “bargaining unit employees” a/k/a/ grant-in-aid football players, why it would make no sense to have a third party, like a union, to represent them.

Bottom line
That process can take considerable time—one or two years, at the least. Since most student athletes attend school for four or five years, it may very well turn out that the football players who were eager to push for unionization at Northwestern will have graduated (or be playing in the NFL) by the time any decision in this case comes down.

Also, keep in mind that the NLRB does not have jurisdiction over public universities, so this decision, no matter how it turns out, will not affect those schools.

Kevin McCormick is the chair of the Labor and Employment Section with the Baltimore law firm of Whiteford, Taylor & Preston. He may be contacted at kmccormick@wrplaw.com.