“I have found that all-grant-in-aid scholarship players for the Employer’s football team who have not exhausted their playing eligibility are ‘employees’ under…the Act.”
This is the conclusion of the National Labor Relations Board (“NLRB") on March 26, 2014.
When some of you read this, the immediate question will be: “How can student athletes be employees when they are enrolled as full time students, and primarily at the school to get a degree, not to play sports?”
The answer from the NLRB comes after a detailed analysis of the facts associated with the Northwestern scholarship players’ time commitments to football. The NLRB concluded the players “are not ‘primarily Ssudents.” That conclusion came from the following factual findings:
- The players spent 50-60 hours a week on their “football duties” during the 1-month training camp before the school year even started.
- The players spend an additional 40-50 hours a week during the 4-5 month football season.
- These hour commitments are “more hours than many undisputed full-time employees work at their jobs.”
- And perhaps just as importantly, these are “many more hours than the players spend on their studies." During the training camp, for example, the students did not attend classes. And even during the academic school year, players spend 20 hours a week in class, and over twice as much time with football duties. Even incorporating study time for class, the court was not convinced academics were “primary.”
The NLRB did not buy that argument for a few glaring factual reasons. First, the scholarship players receive no academic credit for playing football; life lessons about values, perseverance, etc. is insufficient. Second, the value of each Northwestern scholarship is $61,000 to $76,000, which is over $5 million a year for the 85 scholarships. That much money is not incidental, but is rather primary to the relationship.
Similarly, the NLRB noted that non-academic coaches, not faculty members, supervised those scholarship players. That was another fact evidencing a lack of convincing connection between the player and academics.
And here is a big contention. I can hear Northwestern making a fundamental claim: “The scholarship is not a payment for services it is merely a financial aid allowing an opportunity for an education.”
The NLRB essentially rhetorically asked, “if this was only financial aid for school, then why can the scholarship disappear if the player withdraws from playing football?” Scholarships are lost for non-participation. To keep the scholarship the players, even if they do not play, must still participate in practices, workouts, and team meetings. Those are “conditions of retaining their scholarships.” In the NLRB’s view, the scholarships therefore appear more tied to playing football than academics.
All of that leads to a four-word memo to the NCAA and Northwestern: “The sky is falling.” For all the above reasons, the NLRB considers these players to be “employees” and the university the “employer.” And that means if the players organize themselves with a labor organization they can collectively bargain for themselves against the university that “employs” them. The Northwestern players joined the College Athletes Players Association, which the NLRB considers a labor organization under the applicable federal labor relations law.
So if you are “laboring” to understand the NLRB ruling, start with the facts. If an appeal, and there is assuredly going to be one, is to bring a different result, the factual findings will likely have to be different. If the facts continue to evidence a primarily business rather than educational relationship, do not expect a different result.
So other private schools will now reconfigure their relationship with their scholarship athletes to have a different set of facts. Their facts will have to show less time dedicated to the sport, having classes during off season training, and more coaches that are in fact faculty members in some capacity.
Think too of the message it sends to the NCAA. The NCAA is fond of saying it is a voluntary association of its member institutions, and therefore the NCAA itself does not impose its rules on its members. Well after this decision, some of the privately run member institutions will be looking for some rule amendments to change the facts – to reduce the employee labor working conditions of the players and increase the academic connectivity with the scholarship.
