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Northwestern NLRB Decision is a Nightmare for University GCs

By William Peacock, Esq. on March 27, 2014 | Last updated on March 21, 2019

Are you the in house or general counsel of a university that awards scholarships to athletes? Prepare for the biggest shakeup you'll ever see, now that a National Labor Relations Board hearing office has labeled college athletes "employees," which brings the right to unionize and other legal headaches. Should the ruling be upheld by the full NLRB in Washington, D.C., this could impact everything from NCAA rules on amateurism to Title IX scholarships.

If it is upheld. Though that's a big "if," many, including ESPN's legal analyst, are already predicting that it will be tough to overturn.

Ruling: Northwestern Players are Employees, Can Unionize

We have a recap, and the full opinion, on our Courtside blog, but here are some of the key points that factored in to NLRB Regional Director Peter Sung Ohr's decision:

  • Players work between 20 and 60 hours per week on football, "more hours than many undisputed full-time employees work at their jobs."
  • Players do not spend nearly that much time on academics.
  • Players' efforts generate millions of dollars in revenue ($8.4 million in profits for Northwestern from football alone).
  • Scholarships are conditioned on playing the sport.
  • Players' living arrangements, transportation, food choices, and even social media accounts are managed by the football staff.
  • Football trumps academics. Outgoing quarterback Kain Colter noted that he was discouraged from taking a pre-med chemistry course "because it conflicted with morning practices." He changed his major to psychology instead.

Possible Impacts

Is everything too broad of a descriptor? Think about it -- if football players are "employees," then labor law, including regulations on wage and hours, social media management, etc., all apply. Unions come into play, with collective bargaining agreements. The NCAA has amateurism restrictions that may be gutted if universities are now "paying" students wages instead of giving them grants and scholarships. And if those rules go out the window, does football become an arms race of compensation? Does it become a junior NFL with players associations and salary caps?

Here's a big one that just crossed my mind: if schools are paying wages instead of scholarships, does Title IX, which guarantees scholarships to female athletes in non-revenue producing sports in similar quantities to those provided in revenue producing male sports, cease to exist?

Marc Edelman, for Forbes, notes that the opinion addresses two issues that are currently being litigated in federal courts: whether the university is engaged in interstate commerce, which would give life to antitrust claims, and whether the schools owe money to athletes for the use of their likeness via jersey sales.

Seriously folks, especially those working in a university's legal department: this opinion is huge.

What do you think? Are we drastically overstating the impact of this opinion? Will it be overturned by the full NLRB? Let us know your thoughts on Facebook.

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