Of Course Student Athletes Are University Employees

Objectors to the NLRB's ruling that student-athletes can unionize are glossing over the fact that student-athletes meet all the criteria to be considered employees of their schools.

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 which is moving forward with an appeal of the decision—argue that student-athletes are not employees under the letter or spirit of federal labor law.

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.

The Northwestern football players, as Patrick Hruby noted at Sports on Earth, do meet all four prongs of the common-law definition of an employee: Someone

1. performing work for another person or entity under
2. a contract of hire who is
3. under that entity’s control, in return for
4. payment or other compensation.

The work (football), the payment (a scholarship) and the control (the school has the power to revoke scholarships, not to mention that the NCAA has exhaustively detailed codes of athlete conduct) are easily identifiable in the relationship between student-athletes and their universities. But, crucially, Ohr’s decision also spelled out that a contract of hire is in effect signed by a recruit before he or she is officially accepted by the school.

Ohr noted in his ruling that “when [Northwestern football coach Pat Fitzgerald] makes a scholarship offer to a recruit, he provides the individual both a national Letter of Intent and a four-year scholarship offer that is referred to as a ‘tender.’ Both documents must be signed by the recruit, and the ‘tender’ describes the terms and conditions of the offer.”

I have yet to hear of a master high school debater, or glee club member, or newspaper reporter that signed a tender or any similar contract with a university prior to joining the school. The explicit terms of the tender signed by all scholarship college athletes—indeed, the tender’s very existence as a required part of the pre-acceptance process—separates them from other college students, even those who are significantly involved in an extracurricular activity. It also seems to jibe with Ohr’s finding that most scholarship student-athletes are brought into the school explicitly for their athletic abilities, with the “student” part coming second.

And while football and men’s basketball, as the two sports that generate the bulk of most schools’ athletic revenues, have dominated the conversation about the unionization of college sports, it’s worth noting that time commitments and tenders are not limited to players in those two sports—which means other college athletes could be considered employees as well.

Hudson Taylor, a former scholarship athlete who was a three-time All-American wrestler for the University of Maryland, said he trained daily, two times a day, for more than half the year. “There were only maybe one or two months a year where I wasn't wrestling, lifting, running, training—living the life of a college athlete,” he said. “I would train or spend time on wrestling for four or five hours almost every day, except for Sunday.”

Taylor believes the best possible outcome doesn’t involve universities recognizing student-athletes as employees, but rather allowing college athletes to profit off their images and likenesses. Taylor said the inability to profit off his brand as an All-American wrestler hindered his ability to make money for himself in the offseason. “If I could have run a wrestling camp using my name, my brand and my image, that would have been significant to me as a college athlete,” he said. “That was an opportunity that was taken from me.”

That’s an issue at the heart of a different battle in college sports: former UCLA basketball star Ed O’Bannon’s class-action suit against the NCAA. (O’Bannon and his co-plaintiffs argue that the waiver all college players must sign relinquishing their right to make money off their likeness as NCAA athletes effectively fixes the price of their image at zero. The plaintiffs contend the policy violates the Sherman Antitrust Act. A federal judge partially certified the class of plaintiffs in November, and the case appears headed for a June trial.)

The push for reform will now proceed on multiple fronts, with the O’Bannon trial coming in June (unless court-ordered settlement talks are successful) and Northwestern’s appeal to the full NLRB also moving along. The future of the NCAA and college sports, even a decade from now, is anyone’s guess. But no matter how the courts and the NLRB decide, the struggle to establish student-athletes as employees will be front and center. To that point, an ostensibly self-evident passage from Ohr’s decision is worth a second read.

“The goal of the football program is to field the most competitive team possible,” Ohr wrote. “To further this end, players on scholarship are initially sought out, recruited and ultimately granted scholarships because of their athletic prowess on the football field. Thus, it is clear that the scholarships the players receive is compensation for the athletic services they perform for the employer [Northwestern] throughout the calendar year, but especially during the regular season and postseason.”