NLRB to review decision that college football players can form union

Northwestern QB Kain Colter (center) announces on Jan. 28 that players on his team are forming a union.

Matt Marton/Matt Marton-USA TODAY Sports

The National Labor Relations Board on Thursday agreed to review the decision of a hearing officer who concluded that scholarship football players are employees of the school and can form a union.

The decision came just a day before Northwestern’s players are scheduled to vote on whether they want to become members of the College Athletes Players Association for the purpose of collective bargaining.

That election will still be held, but the ballots will be impounded and remain sealed until the labor board decides whether to uphold, modify, or overturn a hearing officer’s March 26 decision allowing Northwestern’s scholarship football players to unionize.

"The election will take place tomorrow," said Gregory King, spokesman for the NLRB. "The votes, however, will not be counted tomorrow."

The labor board will invite attorneys for both the union organizers and the school — and others — to file briefs before it makes any decision, but it is not clear how soon that will happen.

"We have not established a timetable for that," King said.


A notice establishing a timeframe for the process will be issued at a later date.

"CAPA welcomes the review so that college athletes’ employee status and their right to unionize can be confirmed by the federal government," said Ramogi Huma, president of the National College Players Association and the leader of the union movement at Northwestern.

Alan K. Cubbage, vice president of university relations at Northwestern, said school officials were "pleased" with the decision to review the earlier ruling.

"Northwestern believes strongly that our student-athletes are students first and foremost, not employees," Cubbage said in a statement. "We believe the recent ruling by the NLRB regional director was flawed and overlooked or ignored key evidence that Northwestern presented supporting that position.

"We agree that there currently are important issues regarding college athletics nationally and that students should have a voice in those discussions. However, we believe that a collective bargaining process at Northwestern would not advance the discussion of these topics, in large part because most of the issues being raised by the union are outside the purview of Northwestern."

Friday’s vote comes in the wake of a March 26 decision by Peter Ohr, the labor board’s regional director, who ruled that football players at Northwestern who are on schlarships are employees of the school and can form a union for the purpose of collective bargaining.

Among the reasons he cited in his ruling was the amount of time football players devote to their craft — in many cases, more time than they devote to their studies — and the fact that aspects of the athletic program are run like a business and generate revenue.

Backers of the union movement have said they would not seek outright pay for the players but would push for things like funding for medical treatment and to help players who have exhausted their eligibility but not graduated finish the classes they need to earn a diploma.

Northwestern’s attorneys filed an appeal — officially known as a "request for review" — asserting that Ohr "misapplied and departed from officially reported board precedent" and that his findings contained repeated errors in the interpretation of the facts of the case.

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Ohr’s decision opened another front in a burgeoning question of whether college athletes — particularly in football and men’s basketball — should be compensated in some way beyond a full-ride scholarship, known as "grant-in-aid." The question centers on one fact: Those two sports annually generate billions of dollars in revenue.

Two pending federal lawsuits have accused the NCAA and the five largest conferences of violating anti-trust law and seek to abolish the rules that limit compensation to players at the cost of a scholarship. And while the leaders of the union movement at Northwestern have said they don’t anticipate pushing for outright pay for players, the outcome of the case could dramatically alter the landscape.

In his decision, Ohr noted the various aspects of the football program that are business-like and also pointed to the amount of time that football players devote to their sport — 50 to 60 hours a week during the month before the season starts and 40 to 50 hours a week during the season. Taking that into account, he rejected one of Northwestern’s arguments that the players are "primarily students," and concluded that they are actually employees who provide a valuable service in exchange for compensation — their scholarships.

In Northwestern’s appeal, the school’s attorneys called Ohr’s decision "unprecedented" and asserted that he "set out to alter the underlying premise upon which collegiate varsity sports is based.

"By finding that Northwestern University’s football program is a commercial enterprise and that its football scholarship student-athletes are ’employees’ within the meaning of the National Labor Relations Act … the regional director ignored the evidence of Northwestern’s primary commitment to the education of all of its student-athletes, evidence that fully supports that its student-athletes are primarily students, and not employees."

Among the arguments Northwestern’s attorneys made are that 97 percent of the school’s football players graduate, the highest rate among schools in the Football Bowl Subdivision. That, the attorneys wrote, "demonstrates the emphasis that Northwestern places on the academic success of its student-athletes."

They also wrote that the school’s effort to recruit football players is not based primarily on their athletic prowess.

"Rather," the lawyers wrote, "the record is clear that recruitment of student-athletes — just like recruitment of all Northwestern undergraduates — focuses on academics."