Again in the spotlight, the National Labor Relations Board punted the ball down field in a ruling that stunned the college sports world.  The NLRB Regional Director, Peter Sung Ohr, ruled last month that the Northwestern University scholarship football players were employees.  As employees, the players may vote to unionize.  The impact of this decision on collegiate sports is significant.

In a 24 page decision, Ohr found the scholarship athletes were employees because they were compensated by the school and under the strict and exacting control of the school.  Ohr’s decision highlighted the substantial amount of revenue the players bring into the university and the benefits they add in allowing the school to have a national reputation.  He found the monies received by the players in scholarship were not for financial aid to attend the university but instead to pay them for playing football.  Ohr also spent time reviewing the hourly and daily control the university has over the players’ lives, which he found was the type of control you would see an employer have over an employee.  He noted that the players adhered to schedules for workouts, practices, meetings, and studies; the players were subject to special rules; the players needed approval for living arrangements and time spent off campus; Ohr also noted the 40 to 50 hours per week devoted by the players to football-related activities.

Ohr distinguished the facts in the football player matter from those in Brown Universtiy, 342 NLRB 483 (2004).  In Brown University, the NLRB found that graduate student assistants were primarily students and not employees.   Ohr held that contrary to the graduate assistants, the scolarships for football players at Northwestern were not primarily for their roles as students or for a core element of their education.  He also noted that the football players were not overseen by  members of the academic faculty.

Finding the scholarship football players employees, Ohr ruled that the players shall conduct an election by secret ballot to vote on whether the players desire to be represented for collective bargaining purposes by the College Athletes Players Association (CAPA).  An election is set for April 25th.

Taking the ball and running with it up the field, Northwestern appealed the decision to the full NLRB Board in Washington, DC, by the April 9th deadline.  On appeal, Northwestern alleges a host of errors by the Regional Director, including, inter alia, that the NLRB ignored the Brown University precedent, relied too heavily on the testimony of one athlete, and ignored key evidence supporting the student activities of the athletes during the year.  Northwestern contends that there was overwhelming evidence that its football program is “fully integrated with its academic mission, and that it treats its athletes as students first.”

Whether Northwestern returns the ball to the end-zone and successfully over-turns the decision or is stopped short of it, it appears this case is headed to the United States Supreme Court.