NLRB Rules Football Players are Employees. Really?

In a decision that has been attracting a great deal of attention, the Region 13 Regional Director of the National Labor Relations Board (“NLRB”) ruled yesterday that football players at Northwestern are “employees” within the meaning of the National Labor Relations Act (“NLRA”), and directed that an election take place to determine whether the players should be represented by a union.  (See decision here)  The ruling is irrelevant to most employers in the private sector, but nevertheless we thought we would add our two cents to the dNU Football Helmetiscussion because it is an interesting subject.

First, it is important to keep in mind that the ruling is, at this stage, simply the view of a Regional Office whose job duty is basically to expand the jurisdiction of the NLRB and attract attention for its enforcement activities.  The decision will inevitably be appealed, and the legal fight relating to the classification of these players is likely to go on for years.

Second, the decision is a good example of how the most ridiculous conclusions can sometimes be dressed up to look reasonable through references to a hearing record and the use of case citations.  There is an old saying that “to a man with a hammer, everything looks like a nail.”  In this situation, everyone looks like an employee to a Regional Office applying the NLRA.  The fact of the matter is that the NLRB does a particularly poor job of applying its law and precedent to students in educational institutions.  It has struggled for years with what to do about graduate students, and now it has “dropped the ball” (sorry, couldn’t avoid the pun) with college athletes.  The NLRB only understands relationships in terms of an employer-employee dynamic.  It cannot conceive of individuals (or institutions) pursuing something for anything other than monetary reasons.  If you ask college athletes whether they would still play their sports and compete if they did not get a scholarship, odds are most would say “absolutely” (assuming they could still afford to do so).  Yet Region 13 seems to think they are simply assembly line workers punching the clock.

The other problem with the decision from the Regional Office is that it hinges on the assertion that college athletes are not “primarily students” because they spend most of their time training or playing football.  What does this mean for those who are getting debate scholarships and who can put in as much time as student athletes?  Are they employees as well?  If not, what is the difference?  What about football players at Division III schools who put in as much time as Division I players but who don’t make as much (any?) money for their schools?  What about high school athletes?  In addition, if football players at Northwestern are not “primarily students,” then why are they accepting a college scholarship as the only return for their efforts?  Most players at Northwestern are not going to the next level and turning pro in their sport.  Apparently, they see some value in attending a prestigious university and getting a degree after four years.

Although the NLRB is addressing only the scope of the NLRA in the Northwestern case, is it fair to ask (based on the Regional Office’s reasoning) whether football players are also employees for purposes of other laws, such as wage and hour and tax laws?  If not, why not?  Many more questions of this kind can and should be asked about the Regional Director’s decision.  Our own view is that there may be many things wrong with the way college athletics works in America today, but applying employment laws to the relationship between the student athlete and the university is not the right answer.  We also believe that Region 13’s rush to extend its jurisdiction ultimately will be beaten back, if not by higher ups at NLRB, then by the Supreme Court or Congress.