A Student Union

A

recent decision by the Chicago regional director of the National Labor Relations Board that lets collegiate athletes consider unionizing has sent shock waves through the sports world. Some have predicted that the ruling will radically alter the landscape of college athletics. But will it? To answer that, we must consider the scope and rationale of the decision.

The decision. Based on a case brought by players on the Northwestern football team, the decision was made by the director of the Chicago region of the NLRB. The central issue of the case was whether scholarship football players at Northwestern are employees of the university. If the answer is yes, then under the National Labor Relations Act, those athletes would be entitled to vote on whether a union should be formed to represent them.

The NLRB uses a broad, common-law definition that considers an employee to be (1) a person who performs services for another, (2) under a contract of hire, (3) subject to the other’s control or right of control and (4) in return for a payment. Because of the huge revenues generated by Northwestern football, the regional director found that the athletes are providing services. Because the athletes sign a tender containing the terms and conditions of their scholarships, the director determined that a contract of hire exists. And the football players receive free or reduced tuition as well as room and board, which the director considered to be payment for those services.

This left control as the central issue in the case. In making a determination that Northwestern does in fact exercise control over its football players, the regional director focused on a few important facts:

• Players spend 50 to 60 hours per week on football activities in training camp and during the regular season.

• Coaches have significant control over players’ lives through rules restricting where they live, what outside employment they may have, how they may act, when they can drive and what they can post to the Internet.

For these reasons, the director found that Northwestern does have control over its football players, meaning that all four factors were present. Thus, the scholarship football players at Northwestern were found to be employees with the right to vote on whether to unionize.

What’s next? Northwestern has appealed this decision to the full NLRB in Washington. This means that a five-member panel will review the ruling and decide whether or not to uphold it. In the meantime, Northwestern football players have taken a vote on whether to unionize. Those votes will remain impounded until the full NLRB renders a decision. Many experts expect the board to uphold the ruling. If that does happen, then Northwestern will almost certainly appeal the case through the federal circuit courts and the matter could eventually go before the U.S. Supreme Court. The entire process could take between two and five years.

Implications. We are in the early stages of a long process, and it is impossible to draw firm conclusions. However, if the ruling is ultimately upheld, this could significantly affect the sports world in a number of ways:

• The costs for college football programs would almost certainly increase.

• Collegiate basketball athletes would almost certainly follow suit and seek to unionize.

• If costs increase for college football and basketball programs, then athletic departments, many of which break even or lose money, would have to cut other costs, which could mean that other, smaller sports could be eliminated or significantly reduced.

• Athletes in other, non-collegiate sports could also try to unionize.

If the Northwestern decision is upheld, any sport that has athletes who are compensated, sign contracts and are under some control by the organization could be eligible for unionization. While this case will play out over a number of years, sports organizations should take a look at their operations now to anticipate the potential impact unionization could have.

Steve Smith is co-chairman of the sports and entertainment practice at Bryan Cave, LLP, in Colorado Springs, Colorado. Smith can be reached at steve.smith@bryancave.com or (719) 473-3800.