The National Labor Relations Board (NLRB) recently ruled that Northwestern University football players who receive grant-in-aid scholarships and have not exhausted their playing eligibility are “employees” under the National Labor Relations Act, and therefore have the right unionize and engage in collective bargaining with their “employer.” (Northwestern University v. College Athletes Players Association (CAPA)) This represents a huge change in the current relationship between student-athletes and universities.
Northwestern has indicated it will appeal the ruling, and some members of Congress have indicated they may seek to take legislative action to address it, so this battle is far from over. The current ruling applies only to Northwestern, but, should it ultimately stand, it will establish precedent for scholarship football and basketball players at all private universities. (The NLRB does not have jurisdiction over public universities.)
More broadly, the ruling could have wide ranging implications and create many complicated issues regarding how unionization and the employer/employee relationship would play out in the context of college athletics. For example, the ruling only applies to players who receive grant-in aid scholarships. This means that “walk-ons” – players who do not receive such scholarships – are not employees. As a result, some of the football team will be considered employees and some not. So, presumably, the scholarship players will be subject to the panoply of complications that arise in the employer/employee relationship, and the walk-ons will not. Also, how will Title IX and state law requirements for gender equality be applied? Will a female scholarship volleyball player whose university program operates in the red also be considered an employee? How will this impact competitive balances in conferences? Northwestern is the only private school in its conference (the Big 10). None of its competitors will be subject to this decision. (Here on the West Coast, Stanford and USC are the only private universities in their conference (the Pac-12).)
If players successfully unionize, can they be required to pay union dues? Can they be subject to a union activity provision that would require their university to kick them off the team if they refuse to pay dues? If they are employees for other purposes, will they pay taxes on their income (i.e. the value of their scholarships and other benefits)? Will they be entitled to workers’ compensation rights? Will they be subject to federal and state wage and hour laws that require minimum wage and overtime? Will they be entitled to protected leaves of absence under the Family and Medical Leave Act (FMLA) and comparable state law requirements? If so, how will that work? Will the athletes have their eligibility extended by the length of any leave? Will the universities be subject to wrongful termination claims if they release a player from the team for poor athletic performance?
This ruling is remarkable in that it raises many new employment questions that likely will take many years and many legal challenges to play out.