Are college athletes university employees? It’s a question that has gripped the sports world since January, when a group of Northwestern University football players petitioned the National Labor Relations Board to form a union. The debate has only intensified since March 26, when a regional director in Chicago surprised many by granting the players’ petition.
The backbone of regional director Peter Sung Ohr’s 24-page ruling that the players are employees and thus have the right to form a union was the exhaustive description of the responsibilities and time-consuming demands of Northwestern football players. The judge said the evidence put forth by the team members, led by former quarterback Kain Colter and the College Athletes Players Association, showed that football “student-athletes” at Northwestern spend 40 to 50 hours a week on football-related activities for the duration of the regular season and bowl season, and have a virtual year-round commitment to the program. Thus, they are employees under the National Labor Relations Act, Ohr concluded.
“In its detailed presentation of the life of a Northwestern football player and in its analysis of the applicable law, Ohr's opinion clearly anticipates the appeal,” said ESPN’s Lester Munson. “It will be difficult for Northwestern to make any significant changes or amendment to Ohr's descriptions of the enormous commercial value of the players' work and the demands placed on a player.”
The NCAA, some legal experts, and Northwestern—the last of wh
But the day-to-day activities of the Northwestern football players and other college athletes on a nearly year-round basis—and the contracts scholarship athletes sign before the school accepts them—show that athletes do in fact serve an employee function while they’re in school, and objectors to the NLRB’s decision have yet to mount a convincing counterargument.
Alan Cubbage, Northwestern’s vice president for university relations, wrote in a statement last week, “Northwestern considers its students who participate in NCAA Division I sports, including those who receive athletic scholarships, to be students, first and foremost. We believe that participation in athletic events is part of the overall educational experience for those students, not a separate activity.” The NCAA made a similar argument in its statement on Ohr’s ruling via its chief legal officer, Donald Remy.
BakerHostetler LLP partner Jay Krupin, co-leader of the firm’s labor relations practice group, echoed those sentiments and predicted that Ohr’s decision would ultimately be overturned. According to Krupin, the ruling could survive Northwestern’s appeal to the full NLRB, but if so, it would likely be struck down in federal court. Krupin predicted that the full process could take several years and likened Ohr’s decision to “the first possession in a 60-minute game.”
“If the board adheres to the laws that presently exist and analyzes the facts in a deserving manner, it is quite likely that this decision will be set aside,” agreed Marshall Babson, a counsel at Seyfarth Shaw LLP and a former NLRB member. Babson added that Ohr erred in not relying on a 2004 NLRB decision in which the board ruled that Brown University graduate students, though they were required to work as teaching assistants while completing their studies, were not employees. (Ohr ruled that the Brown decision did not apply because, among other things, the players’ football-related duties were unrelated to their academic studies, while the graduate assistants’ TA and research duties were inextricably linked to their graduate degree requirements.)
Krupin and Babson may be right about the fate of the Northwestern players’ NLRB petition. Reform of college athletics could still be years, even decades away. And there is already dissent in the ranks at Northwestern, where a group of team leaders including Colter’s replacement at quarterback, Trevor Siemian, is urging the other players to vote against forming a union.
But whether the players at Northwestern form a union or not, the notion that most student-athletes are students first and athletes second simply doesn’t hold up. As Ohr meticulously spells out in his ruling, the Northwestern players spend roughly 50-60 hours a week on “football and football-related activities” during the preseason (July to August), 40 to 50 hours a week during the season and postseason (September to January), and 20 to 30 hours a week during the offseason (February to April, though most college programs will have informal but quasi-mandatory offseason workouts led by the team captains). Simply put, the players spend more time on football—what the NCAA has said is the ancillary portion of their education—than your neighbors spend at their nine-to-five jobs. And your neighbors are most likely considered employees.
There’s more to consider, however, than just the amount of time athletes put into their sports. At Division I schools (and at major Division II and III programs), athletes are still a world apart from students who spend just as much time in extracurricular activities like the debate team—which multiple legal experts mentioned as a comparison to college athletics—or the college newspaper. And I say that as someone who had more than his share of 40-hour weeks working in the sports department of The Daily Northwestern while in college.