The successful Request for Review marks the next step in a proceeding that began with football players’ January 2014 filing of a
“Certification of Representation Petition,” or “RC Petition,” premised on the
seemingly novel legal theory that Division I scholarship football players were
employees of the University despite their amateur status. In the Regional Director’s March
decision now being challenged by Northwestern, two primary factors were critical to the finding that the
scholarship football players were employees: the value of the players’ scholarships and the
extreme degree of control over players’ lives on which those valuable
scholarships are conditioned. In
particular, the Regional Director’s March decision found:
- That the football players perform services for the University in exchange for a “substantial economic benefit” – i.e., their scholarships, which typically total totaling $61,000 each academic year including tuition, fees, books, room and board, and in some cases in excess of $250,000 over the course of a player’s University football career. For student-athletes who take summer classes, the annual value of a football scholarship at the University can be as high as $76,000.
- That the high degree of control that the University exercises over its football players’ lives, including personal conduct requirements and time commitments to their sport – as much as 40 to 50 hours per week during the football season – is indicative of an employment relationship. As noted by the Regional Director, the football players’ are governed by a “handbook” that establishes in great detail how they must conduct themselves.
- That the revenue generated by the University’s football program supports the finding the scholarship players are employees. Even at a prestigious private university such as Northwestern, which is not in the same league revenue-wise as the big time football schools, the Regional Director noted that the football program had operating profits of approximately $75 million in the 10 years preceding the hearing, and had operating profits of about $8.4 million in the 2012-2013 academic year alone.
- That the football players’ situation was different than the graduate assistants in Brown University, 342 NLRB 483 (2004), because, unlike the grad assistants in Brown University, the football players “are not ‘primarily students,’” the scholarship players football duties do not constitute a core element of their educational degree requirements, the University’s academic faculty does not supervise players’ athletic duties, and the scholarship players’ “compensation” is not financial aid.
- That the football players were not “temporary” employees under the Act, even though their “employment” is for a finite term.
Based on these findings, the
Regional Director concluded that the scholarship football players were
“employees” under Section 2(3) of the Act, as interpreted by the U.S. Supreme
Court in NLRB v. Town & Country
Electric, 516 U.S. 85, 94 (1995) to include the common law definition of employee
– in other words, “a person who performs services for another under a contract
of hire, subject to the other’s control or right of control, and in return for
payment.”
The University’s successful Request for
Review, filed April 9 and available here on the NLRB’s web site,
attacked each of these key conclusions of the Regional Director’s March ruling,
arguing in the process that the NLRB Regional Director improperly placed the
burden of proof on the University, committed clear error on substantial fact
issues, and incorrectly applied NLRB precedent.
In a particularly direct attack, the University accuses the Regional
Director of shading the factual record and writes that “the Regional Director’s
decision reads like a brief submitted by an advocate, with the facts he chooses
to stress set out in the text of the decision and those which are equally
important but which do not support his pre-determined outcome relegated to
footnotes or completely ignored.”
In a clear sign that the case has
become a political issue with broader import than its impact on the actual
parties, the University argued that the NLRB Regional Director’s decision fails
to consider the practical effects of giving scholarship student athletes employee
status:
- That unionization of student athletes would create “chaos” due to the variation in state and federal labor laws;
- That employee status would have tax implications for student athletes if scholarships are re-characterized as income;
- That NCAA regulations, including prohibitions on economic benefits to student athletes, would prevent the football players from achieving their collective bargaining objectives; and,
- That extending collective bargaining rights to the University’s football players would have Title IX consequences by requiring gender equity for so-called “non-revenue” money-losing sports at the University.
Although the Northwestern case has received a great amount of attention, it is important to note that the NLRB’s
jurisdiction is limited to only private employers, i.e., not the public
universities that mostly dominate the Saturday gridiron.
