NLRB Declines to Exercise Jurisdiction Over College Football Players' Petition
october 12, 2015
By: Brian Smith, bsmith@heylroyster.com
College athletics, particularly college football, is a major source of revenue for many colleges and universities. Recently, Northwestern University has been in the spotlight as some of its football players have sought to unionize. In the 2012-2013 academic year, Northwestern University generated $30 million in revenue from its football program, with only $22 million in expenses. Revenue is derived from ticket sales, broadcasting contracts, merchandise sales, concessions, and the like. Many student athletes are on scholarship, which covers tuition expenses, room and board, and other such fees. Currently, there is a debate across the nation as to whether student athletes should receive compensation in addition to their scholarship and share in the revenue their sport generates. At the same time, there is an ongoing dialogue about player safety, particularly concussions in football, and how and when an injured player should return to the field.
Recently, scholarship athletes from Northwestern University's football program filed a petition with the National Labor Relations Board (Board) seeking representation by the College Athletes Players Association for the purpose of collective bargaining and to address those and other questions. Whether these athletes can unionize hinges in large part on whether student athletes should be considered statutory employees, as defined by the National Labor Relations Act (Act), of the university for which they play. In 2014, a NLRB Regional Director concluded that the Northwestern University football players were in fact statutory employees; however, in August of 2015, the Board reversed that decision by declining to exercise jurisdiction over the players' petition.
The Northwestern University football program and the student athletes who receive scholarships to play for the team are governed by NCAA rules. The NCAA sets the number of scholarships that a school can offer, establishes academic and eligibility requirements, the number of hours teams can practice, and a plethora of other rules and regulations. In addition to NCAA rules, Northwestern is a member of the Big Ten Conference, which has its own rules for member schools. The NCAA Division I Football Bowl Subdivision (FBS) is comprised of 125 teams, 108 of those teams are state-run colleges and universities. Northwestern is the only school in the Big Ten that is not state-run. The Board has no jurisdiction over state-run colleges and universities. In light of these facts, the Board concluded that asserting jurisdiction over the Northwestern football players' petition would not promote labor stability.
The Board concluded that if the athletes in Northwestern's football program were allowed to form a collective bargaining unit, and if the Board exercised jurisdiction over one university, the decisions made would likely have ramifications for other schools in the Big Ten and the FBS. Since most of these schools are not and cannot be under the jurisdiction of the Board, the Board declined to exercise jurisdiction. Practically speaking, this means that the petition was denied. However, in reaching its decision, the Board made it very clear that it was not weighing in on whether or not the student athletes were statutory employees under the Act. Also, it was made very clear that this issue could be revisited in the future, particularly if conditions for student athletes changed for the worse.
The Board's decision that it would not exercise jurisdiction over Northwestern's petition keeps in place, for now, the status quo. The NCAA, the Big Ten, other conferences, and individual colleges and universities will continue to regulate student athletics without input from a collective bargaining unit. However, these institutions are under pressure by some in the media and public to make changes. In fact, the Board specifically noted that changes have been made and more are being proposed. In the mix are guaranteed four-year scholarships for student athletes, stipends and medical coverage for a period of time after graduation.
The decision of the Board came as a surprise to some; however, it is clear that this is not the end of the discussion about whether and how scholarship athletes should be compensated for their play. The impact of deeming a student athlete an employee has far reaching implications ranging from workers' compensation claims to employee discipline and supervision. Likewise, as a new season is about to begin, player safety and medical care will continue to be a topic of conversation. Universities are likely to see an increase in lawsuits from current and former players claiming injuries as a result of improper training and care.
