There was a big decision from the Illinois region of the National Labor Relations Board yesterday, finding that Northwestern University football players are “employees” and therefore entitled to unionize. Here’s the CNN story. The players association has been aided by the United Steelworkers. They want to bargain a better health care insurance system for the players, and a requirement for the university to study the effects of concussions on football players, among other things.
Section 2(3) of the Act says that the legislation applies to any “employee”. The NLRB has looked to the common law test of ‘employee’ to construe this language, which emphasizes the degree control the alleged employer has over the worker and whether the worker receives payment for services.
The NW football players perform an extremely valuable service for the university. The football program brings in millions of revenue dollars. The players receive funding in the form of scholarships that pay for their tuition, fees, room, board and books, amounting to about $75,000 per year:
“While it is true that the players do not receive a paycheck in the traditional sense, they nevertheless receive a substantial economic benefit for playing football.”
In exchange for this money, the player becomes subject to a long list of employer-made rules. Their daily schedule is largely fixed by the employer, especially during the August training camp, but also during the year. Players work 40 to 50 hours a week on football activities during the school year. NW controls where the players can live, imposes rules on the use of social media, has a dress code, and can discipline players who are late for practice:
“In addition, the coaches have control over nearly every aspect of the players’ private lives by virtue of the fact that there are many rules that they must follow under threat of discipline and/or the loss of a scholarship. The players have restrictions placed on them and/or have to obtain permission from the coaches before they can: (1) make their living arrangements; (2) apply for outside employment;34 (3) drive personal vehicles; (4) travel off campus; (5) post items on the Internet; (6) speak to the media; (7) use alcohol and drugs; and (8) engage in gambling. “
Considering these facts, and the law relating to ‘employee’ status, the NLRB’s Regional Director found that the football players with scholarships were ‘employees’ under the NLRA and therefore entitled to unionize. A certification vote was ordered. However, as happens in almost every instance in the US, the employer will appeal which will delay the vote for months, if not years.
Assuming that the NLRB upholds the ruling, the case could have big implications for university sports in the USA. NCAA sports is HUGE business, raking in hundreds of millions of dollars a year for the universities. School athletes’ sweaters are sold for millions, yet the athletes don’t receive any of those revenues. They receive free education. If taking a scholarship to play a sport at university makes you an employee, then employment laws apply, including labor relations laws. Unions could bargain a greater share of the huge profits from NCAA sports for the athletes, using that money to pay for better health care insurance, among other benefits. Obviously, the NCAA would prefer to keep all of the revenues for itself, so expect a big push back.
Questions for Discussion
The former president of Northwestern said in a speech recently that a win by the football players could cause NW and other universities to drop football from the programs. American law, like Canadian, prohibits an employer from punishing an employee in any way because that employee supported a union. Do you think these unfair labor practice laws could prevent Northwestern from cancelling the football program in the short or long run?
A while back, some junior players in the Canadian Hockey League considered forming a union for amateur hockey players. That didn’t go anywhere (yet). Junior hockey players also receive room and board and a small weekly stipend. They are subject to an array of company and league imposed rules. In Ontario, the definition of ‘employee’ in Labour Relations Act says only this: ”employee includes a dependent contractor”. Do you think that a junior hockey player would be considered an employee under Ontario law?