By Amanda Becker
(Reuters) – The U.S. government decided on Wednesday that football players at Northwestern University who get scholarship money are effectively school employees and can vote on organizing what could become the first labor union for U.S. college athletes.
In a move that will fuel a debate over whether college athletes are amateurs or professionals, a National Labor Relations Board (NLRB) regional office said scholarship players at the Evanston, Illinois, school, who have not exhausted their playing eligibility, can vote in a union election.
The NLRB will supervise the vote. No date has been set and delays could lay ahead if Northwestern appeals the decision, as many labor lawyers expect the university will do.
But if a majority of the Northwestern Wildcats ultimately votes for a union, they could shake up the sporting world by opening the door for other athletes at private universities, which are subject to the National Labor Relations Act.
“This is going to reignite the controversy over whether somebody is actually an amateur or not,” said Pitta & Giblin labor and employment law attorney Joseph Farelli in New York.
“Unless the decision is overturned … it will put additional pressure on the (National Collegiate Athletic Association) to change its rules with regard to what compensation and monies can be paid to student athletes.”
NLRB Regional Director Peter Sung Ohr concluded in a 24-page decision that Northwestern can be considered an employer, under the National Labor Relations Act, and the roughly 85 football players on scholarship are university employees.
Ohr’s decision to direct an election is expected to be appealed to the full five-member NLRB board in Washington, D.C. by the university, located on Lake Michigan north of Chicago.
A Northwestern University spokesman was not available to comment on the NLRB decision.
STEELWORKERS BACK GROUP
Northwestern football players in January notified the NLRB that they were interested in seeking representation with the College Athletes Players Association, a first-of-its-kind labor organization backed by the United Steelworkers.
At the time, legal experts said it would be difficult, but not impossible, for the players to make the case that they were not merely students, but university employees.
Working in the players’ favor is the fact that, under U.S. President Barack Obama, the NLRB is now controlled by Democrats, the political party friendliest to organized labor.
The NLRB’s record also suggests it may be open to declaring certain groups of students to be employees, experts said.
In explaining his decision, Ohr said students recruited to play football at Northwestern get a “tender” that details their scholarship and the terms and conditions of their offer. Once they join the team, they are subject to special rules about outside employment, social media, behavior and dress.
During the regular season, players spend 40 to 50 hours each week practicing, playing and traveling to games.
LONG HOURS, SPECIAL RULES
“Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies,” Ohr wrote.
He differentiated the Northwestern players from graduate assistants, which the NLRB has determined are not university employees in prior cases.
Unlike graduate students, the players are not “primarily students” because the players spend more time on football than on academics and do not get academic credit for playing football. Plus, their performance is not overseen by academic faculty and they are offered scholarships for their athletic services, Ohr said.
Northwestern reported to the U.S. Department of Education that its football team generated revenues of $235 million and expenses of $159 million between 2003 and 2012. Football players on scholarship receive financial assistance totaling about $61,000 each academic year, the NLRB decision stated.
Experts said Wednesday’s decision was not likely to have an immediate domino effect on college sports since it will likely end up before the full NLRB board and eventually the federal courts. Only 17 of the 120 to 125 schools with Division One football programs are private universities overseen by the NLRB.
But schools may begin retooling policies to avoid complications, attorneys said.
“Everything is fact-driven in these cases,” said Foley & Lardner attorney Jonathan Israel in New York. “I do think if schools were to view it as a serious threat, you might see some adjustments in how they manage the players.”
(Reporting by Amanda Becker in Washington; Editing by Kevin Drawbaugh, Gunna Dickson and Lisa Shumaker)