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Commercial Litigation

Bold and brave new worlds: Unionizing college athletics

March 31, 2014

Commercial Litigation

Bold and brave new worlds: Unionizing college athletics

March 31, 2014

Back to Fish's Litigation Blog

 

Last month, we wrote about the efforts by football players at Northwestern University to join a labor union.  football and helmet_220x133This week the world of college sports was thrown into turmoil when the Regional Director of the National Labor Relations Board’s Chicago Region surprised many by ruling that the players are “employees” within the meaning of the National Labor Relations Act and, therefore, eligible to vote in an election to determine if they desire to be represented by a union.

The Regional Director, Peter Sung Ohr, ruled that the players were employees because they performed services (playing football and engaging in other football-related activities) for the university and received compensation for these services (athletic scholarships).  The scholarships would be withdrawn if the player quit the team, and Ohr noted that the players were subject to numerous rules, including when they went to sleep, when they woke up, when they ate, and where they lived.  The decision details the extent of the time players spend on “football related activities”—50 to 60 hours per week during training camp, and 40 to 50 hours per week during the football season.  Walk-on players, however, are not “employees” because they do not receive compensation—a scholarship—for their work.  Ohr also noted that walk-ons received greater flexibility and were allowed to miss portions of practice time in order to attend classes, while scholarship athletes were not afforded this opportunity.

The decision surprised many analysts who believed that the players would be unsuccessful in their bid to be considered employees because of the Brown University precedent, which held that graduate students with teaching duties were not employees because their relationship with the university was primarily educational, not economic.  Ohr held that the standard articulated in Brown University did not apply to the players because their football-related duties were not related to their academic studies. However, the decision also held that even if the Brown University standard applied, the football players would be employees because: (1) they are not “primarily students,” as “football-related duties” take up significantly more time than their academic studies, (2) their athletic duties are not a “core element” of their educational degree requirements, (3) academic faculty do not supervise the players’ football-related tasks, and (4) athletic scholarships are compensation for services, not financial aid, because they are conditioned on the performance of football-related duties.

Northwestern has vowed to appeal the decision, which was derided by many (Sen. Lamar Alexander, R-Tenn., characterized the ruling as “an absurd decision that will destroy intercollegiate athletics as we know it”) and praised by others (United Steelworkers president said, “This ruling is a tremendous victory, not just for the athletes at Northwestern, but ultimately for all college athletes, many of whom generate tens of millions of dollars each year for their institutions yet still are in constant danger of being out on the street with one accident or injury”). If the decision is upheld, players at many other schools are expected to follow suit and seek to organize. But, the case is far from over and could even end up at the Supreme Court someday.

Some other interesting tidbits that are worth mentioning:

  • Because the NLRB does not have jurisdiction over public institutions, the decision will not apply to players at public colleges. However, the decision could still indirectly affect public colleges if the most desirable players prefer to attend colleges where they have the ability to organize.  Public colleges may then be faced with the choice between missing out on their preferred players or choosing to allow players to organize, even if not required by law, in order to compete with private schools.
  • From the chapter of “be careful what you wish for,” if student-athletes are designated as university employees, they could be liable to the Internal Revenue Service for various benefits they receive from their school, including meals, travel and hotel expenses and even school-branded gear. No one should be shocked if the IRS takes a keen interest in the value of benefits provided to the student-athletes by the university.

We will continue to follow this story and update you as new developments occur.

 

Article co-authored with former Fish attorney, Stephen E. Fox

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One response to “Bold and brave new worlds: Unionizing college athletics”

  1. […] Act and are, therefore, eligible to join a union.  But that decision (the “Ohr” decision) does not apply to players at public colleges.  Therefore, an obvious issue is: will public colleges allow for an […]

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