The Debate About College Athletes as Employees Moves to the National Labor Relations Board

On January 28, 2014, players on the Northwestern University football team filed a petition with the National Labor Relations Board ("NLRB") seeking union representation. The petition is the first of its kind and, if successful, the Northwestern football team would be the first group of college athletes to be represented by a union. The players' petition to the NLRB would allow the College Athletes Players Association ("CAPA") to be designated as their exclusive bargaining representative with Northwestern University.

Whether or not the players' petition is successful will likely turn on whether the NLRB determines the players fit within the definition of "employee" under the National Labor Relations Act ("NLRA"). For years, the National Collegiate Athletic Association ("NCAA") has sidestepped this issue simply by dubbing players "student-athletes." This petition directly asks the NLRB to decide if college athletes are employees under NLRA.

To answer that question the NLRB will apply common law principles of agency. However, in the context of universities and colleges, the NLRB examines an individual's relationship with the college or university and determines whether that relationship is based on education or economics. In 2004, the NLRB decided graduate assistants, including teaching assistants and research assistants, were not employees within the NLRA because the graduate assistants' relationship with their university was educational, and not economical. (Brown University, 342 NLRB 483) [an enhanced version of this decision is available to lexis.com subscribers].

Not surprisingly, CAPA and the Northwestern players will look to frame the issue differently. CAPA's position is that college athletes receive the cost of tuition, room and board as compensation for participating in c

ollege athletics, and college athletics has evolved to the point where it generates billions of dollars a year for colleges and universities, making those athletes' relationship to their school an economic one. To buttress its position, CAPA also raises concerns about the safety of college athletes, especially in light of the recent concerns about concussions. On the other hand, the NCAA's position remains that college athletes are not employees, but are "student-athletes."

The NLRB has set February 7, 2014 for the pre-election hearing. Regardless of how the NLRB rules, its decision will apply only to private universities because the NLRB's jurisdiction does not extend to public employers, including public universities.

In Oregon, the state universities are under the jurisdiction of the public sector agency, the Oregon Employment Relations Board ("ERB"). In a case last January, ERB reached a different conclusion than the NLRB on the status of graduate assistants as employees. Specifically, ERB ruled graduate assistants in the Oregon University System are employees under Oregon's Public Employee Collective Bargaining Act. Coalition of Graduate Employees, Local 6069, Case No. UC-04-12 (Jan. 4, 2013).

If the Northwestern players are successful, they will have the right to bargain collectively with their University over the mandatory subjects of bargaining including wages, hours, and other conditions of employment. Conceivably, Pat Fitzgerald, Northwestern University's Football Coach, could be obligated to bargain over the conditions of university provided housing and meals, practice schedules, parking spaces, and host of other issues. The NLRB's decision in this case has the potential to change college sports as we know (and love) them.

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Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements.

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