Northwestern Football Players And Academic Medical Centers: The Other Shoe Has Dropped

In a move that has surprised many, but not all, National Labor Relations Board (NLRB)-watchers and collegiate football fans, Chicago-area NLRB regional director Peter Sung Ohr has determined that Northwestern University (Northwestern) football players who receive grant-in-aid are employees of Northwestern and an appropriate bargaining unit. Based upon those findings, he has directed an election at some time and place to be determined. (The regional director excluded from the bargaining unit walk-on football players who do not receive grant-in-aid.)

In reaching his decision, the regional director relied, in part, upon the NLRB's decision in Boston Medical Center, 330 NLRB 152 (1999), in which the NLRB determined that house staff were employees who could be represented by unions. The high profile of this case, and the regional director's reliance on a case involving residents and interns, surely will provide a boost to union organizing at academic medical centers.

The regional director's written decision addressed three separate arguments raised by Northwestern in opposition to the petition filed by the College Athletes Players Association (CAPA), which is seeking to represent the players. Each argument is discussed below.

Football Players Are Employees, Too

Northwestern argued that under the NLRB's decision in Brown University, 342 NLRB 483 (2004), which addressed the employment status of graduate student assistants, the football players are not employees. In perhaps the most interesting aspect of the regional director's decision, he first applied a common law test to reach the conclusion that the football players are, in fact, employees. He concluded that the amount of control exercised by the nonacademic employees of Northwestern, specifically the football coach who is not a member of the faculty, was similar to the control exercised by common law employers. Evidence of this control included:

the fact that football players are not considered for admission unless and until they are recruited by the head coach and his team; the "tenders," or contracts that set forth a host of rules by which players must abide to maintain their scholarships, their "compensation" for the services they provide to Northwestern, and the control exercised by coaches "over nearly every aspect of the players' private lives" under threat of sanction (i.e., loss of scholarships) if they violate rules or lose their eligibility; the large number of hours devoted to...