On January 28, 2014, college students who play football at Northwestern University in Evanston, Illinois filed a petition with the National Labor Relations Board’s (the "NLRB") Chicago Region to form a labor union.  The players’ filing asserts their desire to affiliate with the College Athletes Players Association (the "CAPA"), an entity currently receiving both technical assistance and financial backing from the United Steelworkers (the "USW") union.

The Northwestern football players’ filing of a union organizing petition is unprecedented. Never before has a group of college athletes sought to be represented by a labor union in order to engage in collective bargaining with the university where they study and play. NCAA Division I Universities, collegiate athletic conferences, and the states with public university athletic programs must follow this case and consider the various legal issues that could arise as a result of the CAPA’s election petition.

An Unprecedented Filing and Uncertain Results

A hearing is currently set for February 7, 2014, at the NLRB’s Chicago Region to determine whether or not the players are actually eligible to form a union pursuant to the National Labor Relations Act (the "NLRA"). In their effort to unionize, the players must convince the Chicago Region’s hearing officer that they fit the NLRA’s definition of "employee."   Winning this argument may prove difficult for the players.  The NLRB’s current jurisprudence, while not directly on point, seems to be against the players.  In Brown University, 342 NLRB No. 42 (2004), the NLRB held that graduate students were not employees for purposes of the NLRA and therefore could not form a labor union.  The NLRB reasoned that the graduate students’ relationship with their school was primarily educational and not economic, which precluded the Board from holding that the graduate students were employees of the university.  That decision, however, handed down by the Board during the Bush (43) administration, reversed course from earlier cases in which the Clinton Board extended organizing rights to the same types of students.  The current Board, appointed by President Obama, is likely to be more impressed by the reasoning of the Clinton Board cases – and at least one university impacted by those cases, NYU, recently extended voluntary recognition to a graduate assistants’ union.

Still, no legal body has held since 1953 that college athletes could be deemed to be "employees" of a university.  In University of Denver v. Nemeth, 127 Colo. 385, 257 P. 2d 423 (1953), the Colorado Supreme Court held that a college football player was an employee of the university and eligible for workers’ compensation benefits.  Following that decision, the NCAA revised its guidelines to create the current “student-athlete” designation.  Accordingly, the players likely face an uphill battle in convincing the NLRB’s Chicago Region that they are in fact "employees" for purposes of the NLRA and therefore should be allowed to unionize with the CAPA.

The Chicago Region’s decision as to whether the Northwestern players are "employees" is just the first step in what will in all likelihood be a legal battle lasting years into the future.  Whatever the hearing officer decides, his or her holding will almost certainly be appealed to the full Board in Washington, D.C.  In the event the current Board, which seeks to expand the scope of the NLRA, reverses and extends Brown University to hold that the players are in fact "employees" for purposes of the NLRA, it is a near certainty that ruling would be appealed further in the federal courts.

What If The Players Are Found To Be Employees Under The NLRA?

The players will be allowed to form a union if they are found to be "employees" of Northwestern University for purposes of the NLRA.  Accordingly, if a majority of the players then voted for the CAPA/USW in a Board election, the union would be entitled to engage in collective bargaining negotiations with Northwestern University over wages, hours, and other terms and conditions of employment.

Northwestern’s football players have stated publicly that they only wish to unionize in order to secure a higher standard of medical benefits for themselves and for the players that come along after them.  However, wage rates are a mandatory subject of bargaining pursuant to the NLRA.  It is almost unimaginable that the players would turn down the opportunity to obtain some financial compensation.  With most Division I schools carrying up to 85 players on scholarships (plus around 20 to 30 more non-scholarship players) per football team, such wage exposure could become very expensive, very quickly (and that obviously does not factor in all the other college sports).  Moreover, work rules and hours of work are mandatory subjects of bargaining under the NLRA, setting up a potentially messy situation for efforts by the NCAA and its contingent conferences to coordinate on uniform schedules and regulations.

Another interesting dilemma would present itself as the NCAA and various contingent conferences include both public and private learning institutions.  At issue in the Northwestern case is only whether the student-athletes of Northwestern – a private university – are employees under the NLRA.  The employees of public universities are almost certainly not.  To the extent public school student-athletes might arguably be “employees” entitled to bargain, that issue would be determined by the applicable state employee collective-bargaining laws – potentially setting up situations where student-athletes within some conferences have partial or full federal bargaining rights, others have partial or full state law bargaining rights, and still others have none.

The Domino Effect

Adding to that array of complications, other labor and employment jurisprudence could be significantly affected by a decision holding that college football players are "employees" for the purpose of the NLRA.  For example, it is an open question as to whether a student-athlete would be considered an "employee" for the purposes of the Fair Labor Standards Act (the "FLSA") – although the standards employed under both regulatory schemes are nearly identical.  If the student-athletes were found to be "employees" under the FLSA, they could be entitled to back wages, which could open a university up to either a class or collective action on behalf of a group of unpaid student-athletes. Moreover, if some universities are required to pay their student-athletes minimum wage, how would that affect their student-athletes’ eligibility under the NCAA’s rules?

Further, the student-athletes could become subject to state unemployment insurance laws.  The institution could be liable for years worth of unpaid contributions.  If a student-athlete is cut from his school’s football team and was being paid wages, the student-athlete arguably would be eligible to receive unemployment benefits.  More importantly, however, is the question of whether such employee/athletes would be eligible for workers’ compensation benefits.  In a sport as violent and injury-filled as college football, it is foreseeable that workers’ compensation awards would be granted on a regular basis, which could become quite costly for a university.

Clearly, universities need not enter into the collective bargaining process with their student-athletes anytime soon.  However, it would be prudent for a university to consider fully the above-discussed issues before those issues turn into liabilities.