By decision dated March 26, 2014, National Labor Relations Board (NLRB) Regional Director Peter Sung Ohr upheld the findings of a hearing officer which determined that all football players at Northwestern University who receive grant-in-aid scholarships are “employees” within the meaning of the National Labor Relations Act, and that a petitioned-for unit — comprising all Northwestern University football players receiving scholarships who have not exhausted their playing eligibility — may vote by secret ballot to determine whether the College Athlete Players Association (CAPA) should be their bargaining representative/union.

In determining that Northwestern’s scholarship football players are “employees,” Ohr reasoned that those players receive compensation for services in the form of tuition, fees, room, board, and books, as well as additional stipends for special circumstances. In addition, the players are subject to special rules, spend a majority of their time on football-related activities, and are recruited primarily for their talents on the field rather than for their academic achievement in high school. Finally, Ohr observed that the Northwestern football team generates significant revenue for the college.

While there is much early speculation about how this groundbreaking decision may significantly alter college sports, it will be subject to review by the NLRB (currently controlled by three pro-union members) and ultimately by the federal courts (a process that will take many years). Indeed, we predict that Northwestern likely will obtain reversal or substantial modification of the decision (even if CAPA wins an election) given the practical difficulties associated with the complex interaction between private universities and public universities (which are not covered by the National Labor Relations Act), and the intersection of big-time college football and the NCAA rules. Nevertheless, for the time-being, one may consider several practical impediments that would preclude the widespread unionization of private university football teams’ scholarship players even if the decision ultimately stands.

For example, it is likely that any well-funded university program would be able to mount a persuasive campaign against a player/employee vote in favor of a union based on the practical disadvantages of a unionized environment within a major college football program. University representatives will likely maintain that the existence of a union could negatively impact the overall dynamics of the team, as a divisive atmosphere might prevent players and coaches from working together effectively. They could explain prior to any election that, in unionized settings, the terms and conditions of employment are typically governed by a collective bargaining agreement in which the union represents the interests of the employees in dealing with many day-to-day issues that arise in the workplace. As a result, if an election were held, and a majority of Northwestern’s scholarship football players voted in favor of CAPA, the university would not be able to lawfully negotiate individual arrangements with players after CAPA’s certification as their bargaining representative. This outcome could cause serious dysfunction that would negatively affect the team during the recruitment process, practice sessions, and games.

In addition, most players would not be pleased to learn that union membership dues could total more than one thousand dollars per year. Players also may not appreciate the fact that, with a union, they would often be unable to deal directly with their coaches in addressing issues and concerns impacting their particular circumstances as a team member.

In the event, however unlikely, that the federal courts ultimately uphold any aspect of this or any other decision by the NLRB to deem scholarship football players to be “employees” eligible to vote for a union, it seems that unions will be at a disadvantage in actually winning elections to become the bargaining representative of any particular college’s football players. Moreover, the likelihood of any union being able to actually negotiate and secure the terms of a collective bargaining agreement seems minimal as well. We believe there is a fundamental difference between individual college units and union management issues between National Football League owners and the National Football League Players Association, wherein all NFL players are within the same bargaining unit.

The thorny legal and practical issues connected with Orh’s recent decision are difficult to forecast, but given the typically adversarial nature of the union campaign process, and the fact that most major colleges have sufficient resources to mount effective anti-union campaigns, it appears unlikely that CAPA or any other union will be able to win many elections or even secure contracts in the event that they ultimately are certified as the bargaining agents for any college team’s scholarship players.

If you have questions about this case, please contact:

• Richard A. Braden (716.566.5436; rbraden@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Matthew C. Van Vessem (716.566.5476; mvanvessem@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group.