“Student-Athlete” or Employee? NLRB’s Decision Regarding Northwestern University Football Players

By: Corey Peterson

On March 26, Peter Sung Ohr, a regional director of the National Labor Relations Board (NLRB), issued a decision holding that Northwestern University (NU) football players receiving scholarships from the University are employees under the National Labor Relations Act (NLRA). As employees of Northwestern, the football players covered by the decision now have the right to be represented by the College Athletes Players Association (CAPA) for collective bargaining purposes. CAPA, founded by Ramogi Huma, a former UCLA football player, aims to guarantee “coverage for sports-related medical expenses for current and former players,” “improving graduation rates” by creating an educational trust fun, and “securing due process rights” for players.

In his decision, Mr. Ohr noted several underlying reasons in support of his assertion that NU scholarship-recipient football players are in fact employees. One such reason is the disparity between the value of scholarships received by football players and the amount of revenue generated by these athletes for the University. While the dollar value of a NU scholarship for any given football player may amount to $76,000 a year, when calculating the cost of tuition and room and board, the revenue generated by the NU football program was nearly $235 million between 2003-2012 alone. Another benefit received by universities such as Northwestern from these athletes is an increase in application and enrollment numbers. A 2012 study found that the success of a college sports program has a large impact on students’ application decisions. A successful year in college basketball could mean up to a 10% boost in the number of SAT scores sent to a university for review as part of an application package.

The NLRB’s decision was also based on the nature of the contractual relationship between the scholarship recipients and NU. Scholarships awarded to athletes are clearly not awarded based on the individual’s academic ability. Instead, these scholarships are awarded based solely on the individual’s demonstrated and potential athleticism. Once a scholarship has been offered, the future NU football player must sign a document called a “tender” before receiving the athletic scholarship. This “tender” is effectively a contract for employment as it governs the scholarship in the same way that an employment contract would govern the employee’s relationship with the employer. The “tender” solidifies the exchange of money from NU (scholarship) to the athlete for services (participation on the NU football team). Once “employed”, athletes spend up to sixty hours per week participating in football-related activities during training camp prior to the start of the competitive season and nearly fifty hours per week during the season. It is clear that an NU football player’s schedule can barely accommodate the additional 20 hours per week that players must spend on academics. It is hardly fair to call an individual a “student-athlete” when their scholarship awards are given on the basis of athletic, not academic, performance and the vast majority of their time at NU is focused on football. As the saying goes, if it walks like a duck and talks like a duck…

Critics of the NLRB decision may argue that the scholarship awards and provisions for room and board are enough to adequately compensate a student-athlete for their athleticism and for the benefits accruing to the university on their behalf. But consider the recent remarks of the University of Connecticut’s Shabazz Napier, a national basketball champion, who explained in early April that he goes to bed “starving” on some nights because he cannot afford to purchase food. While schools like NU have made hundreds of millions of dollars on the backs of “student athletes” the athletes and their families struggle to survive.

Luckily, the NCAA has recently taken one small step in the right direction. On April 15th the NCAA Legislative Council approved meals legislation allowing student-athletes to receive unlimited meals and snacks. Prior to passing this legislation, student-athletes could either receive a stipend for food or three meals a day. While this change will alleviate Mr. Napier’s situation, it does nothing for the thousands of current and former college athletes facing other issues such as paying medical bills for injuries sustained while playing in college.

While we cannot hold our breath waiting for the NCAA to address the many issues facing student-athletes (issues persuasively discussed in a 2011 article in The Atlantic), there may be hope in state legislatures. Connecticut State Representative Patricia Dillon announced in early April that in response to the NLRB decision she and her staff are analyzing whether athletes will face legal barriers in their effort to unionize at public colleges and universities within the state. In 2011, the Connecticut legislature passed legislation authored by Dillon requiring schools to disclose the fine print of the scholarship agreements to student athletes while also standardizing the information that must be disclosed to recruits and families.

It is clear that the recent NLRB decision got it right; “student-athlete” is a misnomer depriving college athletes across the country of benefits that are rightfully due. What remains to be seen is whether and how NU football players will take advantage of their right to collectively bargain with their employer. It may be that the NLRB ruling is just the kick the NCAA needs to re-evaluate their “student-athlete” policies.

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