TBA Law Blog

Posted by: Christy Gibson on Jul 10, 2014

by Steve Darden*

The concept of union representation for college student-athletes is a hard-sell to most laypersons and lawyers alike. Unless the National Labor Relations Board (“NLRB” or “Board”) disagrees, however, with Regional Director Peter Sung Ohr of its Chicago office, it is a possibility.  A secret ballot election among players on the Northwestern University football team was held April 25, 2014 and whether the votes are counted depends on a review by the five-member NLRB in Washington, D.C.

On March 26, 2014, Regional Director Ohr approved the election petition and the Board agreed to review the case one day before the election was held.  Such review will probably take several months. The ballots were impounded once they were cast, and will not be counted until the legal issues are sorted out, if ever.  Besides the parties’ briefs, 18 amicus briefs were also filed.

Keeping with tradition, President Obama appointed three Democrats to the Board while two appointees are Republicans, so the smart money says the Regional Director’s decision will be approved. Even so, Northwestern’s football players and their union will not likely appear at the bargaining table soon, and many newspaper quotes from election day suggest that a majority of the players may have voted “no.” For now, the College Football Players Association, funded by the Steelworkers Union, has a groundbreaking opportunity to become the student-athletes’ bargaining representative. 

Under NLRB rules, if the Board agrees with the Regional Director, Northwestern cannot obtain court review of the Board’s decision.  Instead, the ballots will be counted and if a majority of the players voted for union representation, the union would be certified and have the right to demand bargaining. Northwestern could then refuse to engage in negotiations, which would undoubtedly prompt an unfair labor practice charge, and thus allow Northwestern to test the NLRB’s decision in federal court. Years of litigation are likely.

The decision is actually of limited application since the National Labor Relations Act (“NLRA” or the “Act”), the law that permits unionization, applies only to private employers. Since most of the country’s big-time college football programs are public universities, those universities are not covered by the Act.  Nonetheless, the ruling clearly advanced the movement toward revenue sharing by student-athletes at public and private institutions that are, or soon will be, awash in cash from lucrative television contracts. Five major collegiate athletic conferences are already seeking new rules on enhanced financial assistance to athletes and the NCAA recently liberalized its rules, allowing round-the-clock meals and snacks for student-athletes. 

The ruling deems student-athletes on Northwestern’s football team as “employees” and their scholarships as “wages.” Thus, to Regional Director Ohr, Northwestern’s football student-athletes and welders, truck drivers or factory workers, whose jobs are covered by a collective bargaining agreement, are the same. On the other hand, walk-on players who participate in football because of their “love of the game” but pay their own way were not considered “employees” in the ruling.

As union membership in the United States has declined, the NLRB has expanded its jurisdiction to workers it previously considered outside the coverage of the Act, including medical interns, residents and fellows, tugboat mates, charge nurses, and orchestra musicians.  But the Northwestern case may set the record for surprising outcomes so far.

In football terms, the first quarter of this case is barely underway, and there are more questions than answers. If 50% or more of Northwestern’s football players who voted checked “no” on their ballots, thus rejecting unionization, then Northwestern University and other private universities will breathe a sigh of relief. On the other hand, if a majority of players voted “yes,” a new era will have dawned. Under federal law, if a majority of employees in a “bargaining unit” vote “yes”, the union represents all employees in the bargaining unit.

In a traditional employer-employee setting, wages, hours, and working conditions must be negotiated. This means that, potentially among the long list of conceivable topics for negotiations are the Northwestern football team’s rules of conduct, hours during which training and practices will be conducted, and even playing time. The union seeking to represent the Northwestern student-athletes is on record as saying that it does not intend to bargain over compensation, which is clearly a mandatory subject of bargaining. Northwestern is in Illinois, which is not a right-to-work state; therefore, negotiators could agree that each team member who receives a scholarship would have to join the union as a “condition” of being on the team and of attending the university!

And what about union dues? The Steelworkers Union typically charges 1.3 percent of a member’s income as dues.  Thus, for a Northwestern grant-in-aid scholarship and other items conservatively valued at $60,000 per year, union dues of $780 per year could be charged. And if the NLRB deems a scholarship to be “wages”, isn’t it reasonable to assume the IRS would seek to collect income taxes from a scholarship recipient?

By the time the Northwestern case makes its way through the system, perhaps ultimately being resolved by the Supreme Court, a new President could have been elected and the NLRB may have a new set of members, appointed by President Obama’s successor. In the meantime, it is possible that Pat Fitzgerald, head football coach of the Northwestern Wildcats, could spend a morning analyzing game film with a starting player, only to encounter him across the bargaining table in the afternoon. And if unionization spreads among student-athletes, it is not out of the question that the players at Vanderbilt, a private institution, could someday go on strike a few days before the annual football game against Tennessee.


*Steve Darden practices law with the Tri-Cities firm of Hunter, Smith & Davis, LLP and is Chair of the firm’s Labor and Employment section. Steve may be reached at www.hsdlaw.com or (423) 283-6303.