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Northwestern Players Union Ruling Could Revolutionize NCAA Sports

Northwestern Players Union Ruling Could Revolutionize NCAA Sports

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Published by FindLaw
Northwestern University football players on scholarship are university employees and may unionize, a National Labor Relations Board hearing officer ruled on Wednesday.

The first-round legal victory by Northwestern players has the potential to shake up the world of big-time college sports. But the fight has just begun, as this is likely just the start of a long, arduous legal battle.

Still, the Northwestern football union ruling (attached below) is groundbreaking and could prove revolutionary.

NLRB regional director Peter Sung Ohr ruled that ex-Northwestern quarterback Kain Colter and current players are employees and entitled to form a union.

Universities have long argued -- successfully in court -- that athletes are not employees.

But Ohr disagreed, ruling Northwestern's players work between 20 and 50 hours per week and generate millions of dollars for their institutions. He illustrated how they perform services under a contract of hire (scholarship), subject to the other party's control (coaches) and in return for payment ($61,000 per academic year at Northwestern; $76,000 for those players who attend summer school).

Northwestern promptly announced it plans to take the case to the full NLRB in Washington.

"This is a landmark decision," William Gould IV, a former chairman of the NLRB, told the Chicago Tribune. "This is going to rattle the universe of universities."

The legal battle for compensating college athletes just began in earnest.
Northwestern University football players on scholarship are university employees and may unionize, a National Labor Relations Board hearing officer ruled on Wednesday.

The first-round legal victory by Northwestern players has the potential to shake up the world of big-time college sports. But the fight has just begun, as this is likely just the start of a long, arduous legal battle.

Still, the Northwestern football union ruling (attached below) is groundbreaking and could prove revolutionary.

NLRB regional director Peter Sung Ohr ruled that ex-Northwestern quarterback Kain Colter and current players are employees and entitled to form a union.

Universities have long argued -- successfully in court -- that athletes are not employees.

But Ohr disagreed, ruling Northwestern's players work between 20 and 50 hours per week and generate millions of dollars for their institutions. He illustrated how they perform services under a contract of hire (scholarship), subject to the other party's control (coaches) and in return for payment ($61,000 per academic year at Northwestern; $76,000 for those players who attend summer school).

Northwestern promptly announced it plans to take the case to the full NLRB in Washington.

"This is a landmark decision," William Gould IV, a former chairman of the NLRB, told the Chicago Tribune. "This is going to rattle the universe of universities."

The legal battle for compensating college athletes just began in earnest.

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Published by: FindLaw on Mar 27, 2014
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UNITED STATES GOVERNMENTBEFORE THE NATIONAL LABOR RELATIONS BOARDREGION 13NORTHWESTERN UNIVERSITYEmployer andCase 13-RC-121359COLLEGE ATHLETES PLAYERS ASSOCIATION(CAPA)PetitionerDECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended (“the Act”), a hearing was held before a hearing officer of the National Labor Relations Board (“theBoard”). Pursuant to the provisions of Section 3( b) of the Act, the Board has delegated to the undersigned its authority in this proceeding.
1
 
1
Upon the entire record in this proceeding, I find:1.The hearing officer’s rulings, made at the hearing, are free from prejudicial error and are affirmed.2.Northwestern University (“the Employer”) is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein.3.College Athletes Players Association (“the Petitioner”) is a labor organization within the meaning of the Act. At the hearing, the Employer stipulated that the Petitioner was a labor organization if two conditions were met: (1) its football players who receive grant-in-aid scholarships are found to be “employees” within the meaning of the Act; and (2) the petitioned-for-unit was found to be an appropriate unit within the meaning of the Act. I find that both of these conditions have been met. See also
 Boston Medical Center 
, 330 NLRB 152, 165 (1999) (where Board found that the petitioner was a labor organization since employer’s interns, residents, and fellows were employees within the meaning of Section 2(3) of the Act). Further, notwithstanding the Employer's conditional stipulation, I find that the Petitioner is a labor organization within the meaning of the Act for the reasons set forth in Section IV (F) of this decision. 4.The Petitioner claims to represent certain employees of the Employer in the unitdescribed in the petition it filed herein, but the Employer declines to recognize the Petitioner as the collective-bargaining representative of those employees5.There is no collective-bargaining agreement covering any of the employees in the unit sought in this  petition and the parties do not contend that there is any contract bar to this proceeding.6.A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6)and (7) of the Act.
 
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I.ISSUES
The Petitioner contends thatfootball players (“players”) receiving grant-in-aid scholarships (“scholarship”) from the Employer are “employees” within the meaning of the Act, and therefore are entitled to choose whether or not to be represented for the purposes of collective-bargaining. The Employer, on the other hand, asserts that its football players receiving grant-in-aid scholarships are not “employees” under the Act. It further asserts that theseplayers are more akin to graduate students in
 Brown University
, 342 NLRB 483 (2004), whom the Board found not tobe “employees” under the Act. In the alternative, the Employer contends that its players are temporary employees who are not eligible for collective bargaining. Finally, the Employer contends that the petitioned-for-unit is arbitrary and not appropriate for bargaining.
II.DECISION
For the reasons discussed in detail below, I find that players receiving scholarships from the Employer are “employees” under Section 2(3)of the Act. Accordingly,
IT IS HEREBY ORDERED
that an election be conducted under the direction of the Regional Director for Region 13 in the following appropriate bargaining unit:Eligible to vote are all football playersreceivingfootballgrant-in-aid scholarship and not having exhausted their playing eligibility employed by the Employer located at 1501 Central Street, Evanston, Illinois, but excluding office clerical employeesandguards, professional employees and supervisors as defined in the Act.
III.STATEMENT OF FACTSA.Background
The Employeris a private, non-profit, non-sectarian, coeducational teaching university chartered by the State of Illinois, with three campuses, including onelocated in Evanston, Illinois. It currently has an undergraduate enrollment of about 8,400students. The academic calendar year for these students is broken down into four quarters: Fall, Winter, Spring, and an optional Summer Session. The schedule for the current academic calendar year shows that classes began on September 24, 2013 and conclude on June 13, 2014.The Employer maintains an intercollegiate athletic program andis a member of the  National Collegiate Athletic Association (NCAA). The NCAA is responsible for formulating and enforcing rules governing intercollegiate sportsfor participating colleges. The Employer is also a member of the Big Ten Conference and its students compete against the other 11 member schools (as well as non-conference opponents) in various sports. There are currently 19 varsity sports, which the Employer’s students can participate in at the Division I level, including 8
 
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varsity sports for men and 11 varsity sports for women. In total, there are about 500 students who compete in one of these sportseach yearfor the Employer.
B.The Employer’s Football Staff andGrant-in-Aid Scholarship Players
As part of its athletic program, the Employer has a varsity football team that competesin games against other  universities. The team is considered a Football Bowl Subdivision (FBS) Division I program.
2
 Since 2006, the head football coach has been Patrick Fitzgerald, Jr.,and he has been successful in taking his team to five bowl games. On his football staff, there is a Director of Football Operations, Director of Player Personnel, Director ofPlayer Development, nine full-time assistant coaches,and four graduate assistant coaches who assist him with his variousduties. There are also five full-time strength coaches, two full-time video staff employees, two administrative assistants, and various internswho report to him. In turn, Head Coach Fitzgerald reports to Athletic Director JamesJ. Phillipsand President Dr. Morton Shapiro.The Employer’s football team is comprisedof about 112 playersof which there are 85  players who receive football grant-in-aid scholarships that pay for their tuition, fees, room,  board, and books.
3
 The playerson a scholarship typically receivegrant-in-aid totaling $61,000 each academic year.
4
 The grant-in-aid for the players’ tuition, feesand books is not provided directly to them in the form of a stipendas is sometimes done with room and board. Because the Employer’s football team has a rule requiring its players to live on campus during their first two years, these playerslive in a dorm room and are provided a meal card,which allows them to buy food at the school cafeteria. In contrast, the players who are upperclassmen can elect to live off campus,and scholarship players are provided a monthly stipend totaling between $1,200 and $1,600 to cover their living expenses. Under current NCAA regulations,the Employer is  prohibited from offering its players additional compensation for playing football at its institutionwith one exception.The Employer is permitted to provide its players with additional funds out of a “Student Assistance Fund” to cover certain expenses such as health insurance, dress clothes required to be worn by the team while traveling to games,the cost of traveling home for a family member’s funeral,and fees for graduate school admittance testsand tutoring.
5
 The players do not have FICA taxes withheld from the scholarship monies they receive. Nor do they receive a W-2 tax form from the Employer. For a number of years, the NCAA rulesprovided that players could only receiveone-yeascholarships thatwere renewable each year at the discretion of the head coach. But effective the 2012-2013 academic year,the NCAA changed itsrule to permituniversities to offer four-year scholarships to players. The Employer immediatelythereafter began to award its recruitsfour-
 
2
There are currently 120 to 125 universities with collegiate football teams that compete at the FBS Division I level. Seventeen of these universities, including the Employer, are private institutions.
3
The remainder of the football players on the team are “walk-ons” who do not receive grant-in-aid scholarships, but may receive need-based financial aid to attend the university which is not contingent on them remaining on the football team. This financial aid can be renewed every yearif the player qualifies for it. The walk-ons may also eventually earn a grant-in-aid scholarship and this has in fact happened to 21 players within the past seven years.
4
This figure increases to about $76,000 if a grant-in-aid scholarship player enrolls in classes during the Summer session.
5
For academic calendar year 2012-2013, the Employer disbursed about $54,000 from this fund to 30 or 35 of its football players.

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