Northwestern Football Players Seek to Unionize

There’s some interesting labor law news today from an unlikely source – college football players at Northwestern University. Tom Farrey of ESPN’s Outside the Lines first reported that members of the Northwestern football team submitted a petition and signed union cards to the National Labor Relations Board yesterday, with assistance from the United Steelworkers and the National College Players Association, a nonprofit organization that advocates for the rights of college athletes. In doing so, the players seek union recognition and all of the benefits that flow from it, including the right to collectively bargain over terms and conditions of employment.

Legal Questions for Student-Athlete Organizing Efforts

The players’ union drive raises a number of legal questions for the NLRB to resolve. Perhaps the most important issue is whether college student-athletes qualify as “employees” as defined by Section 2(3) of the National Labor Relations Act. Indeed, if the NLRB finds against the Northwestern football players on this issue, then the protections of the Act – including the right to organize and collectively bargain – would not apply to these student-athletes.

The instant case is already drawing comparisons to the plight of New York University graduate student teaching assistants who long sought the right to collectively bargain. In a 2000 decision, the NLRB found that they constituted employees within the meaning of Section 2(3) of the NLRA. The NLRB stated, “We reject the contention . . . that, because graduate assistants may be ‘predominately students,’ they cannot be statutory employees.” Among other arguments presented by NYU and rejected by the NLRB, the Board found that “financial aid” amounted to “compensation” for services performed. Nevertheless, the NLRB expressly reversed itself in 2004, when Brown University graduate student assistants sought to organize. In this case, the NLRB found that graduate students “have a predominantly academic, rather than economic, relationship with their school.” In yet another turn in this line of cases, the NLRB announced in 2012 that it would reconsider its 2004 ruling in response to another petition filed by NYU graduate students to organize. The case settled before the NLRB issued a ruling. The comparison between graduate students and student-athletes, particularly those who play big revenue sports such as football and basketball, is not perfect. Yet the line of NLRB cases involving graduate student assistants demonstrates the uncertainty in this area of the law.

Should the players ultimately succeed at the NLRB, the relationship between the NCAA, individual universities, and college athletes would drastically change. It is worth noting that the NLRB’s decision would only apply to college athletes at private schools, as state law, and not the NLRA, governs labor relations at publicly funded universities.