First and Ten: Should Northwestern Football Players be Considered Employees?

M. Caitlin Gallaher, KLJ Staff Editor

Whether it was your favorite football team growing up, your alma mater, or any game that happened to be on the TV, collegiate sports have been ingrained in the American way. But has the time come for us to stop considering the players’ student athletes, and instead refer to them as employees of their respective schools?

At the start of the 2014-year, the Northwestern football team filed a petition with the National Labor Relations Board (N.L.R.B.), seeking for the team to be recognized as employees of the University, and thus enforce their right to unionize.[i] During the hearing, the College Athletes Players Association (CAPA) argued that under the N.L.R.B and the United States Supreme Court precedent the law dictates that: the common law definition of employee should be used; that the players fit under the definition of “employee” because they received compensation for services rendered; that those services created large amounts of revenue for the school; the players were under the control of the coaches; and that the players activities were separate from their roles as students.[ii] In response, Northwestern University urged the N.L.R.B. to determine the status of the players based on the test established in Brown University, which goes beyond the common law definition and considers their status as students; the role of their activity (playing football) in their education; the relationship between the student and the faculty; and the financial support they receive.[iii]

In the decision issued on March 26, 2014, by the Regional Director, Peter Ohr, of region thirteen for the National Labor Relations Board, this right was granted.[iv] If allowed to be, and elected to be, organized by CAPA the players would be recognized by Northwestern and CAPA and would engage in negotiations to create an agreement between the players covering aspects that will be deemed important to the players and the University. The ruling of the Regional Director stated that the players were to be considered employees of the university by applying the N.L.R.B definition of “employee.”[v] This broad definition provided by the N.L.R.B. has been considered by the United States Supreme Court, which determined that in applying the definition it is necessary to also consider the common law definition of employee.[vi] Under the common law definition an employee is someone who “performs a service for another under a contract for hire, subject to the others control or right of control, in return for payment.”[vii] Thus, the Regional Director decided that scholarship-aid recipients that participate on Northwestern’s football team are employees based on the scholarships they receive, the service they provide in playing football, and the coaches’ control over the players’ time.[viii] Northwestern appealed to the N.LR.B. to have the determination that the players were employees reviewed, the appeal was granted and we are still awaiting decision on the ultimate issue.[ix]

But should they really be considered employees? During the initial hearing, CAPA stated that the status of the football players is completely separate from that of their status as a student.[x] It seems as though CAPA considers the status of a football player, and that of a student at Northwestern, fully independent of each other. However, this assumption seems to remove from the analysis that but-for the football player’s status as a student there would be no availability for the players to be on the football team and thus at best the claim of independence between the two statuses should be questioned. Additionally, the separation of the players’ status takes no notice to the collective environment that a college campus provides. A college campus is not simply an academic institution, instead it is a community with students from all different backgrounds involved in a variety of activities, college football is but one sector of the community and is most certainly not the only division with students receiving scholarship-aid. The combination of these different activities and student participation is what creates the collegiate experience, without one of them the experience and environment could be drastically altered.

It has also been stated that the scholarship-aid football players receive is in fact compensation for an activity performed by the football players.[xi] This argument is made despite the fact that the Internal Revenue Service (IRS) considers scholarship-aid that is used for tuition and fees needed for attendance at an educational facility to not be considered part of a persons gross income, and therefore is non-taxable income.[xii] Moreover if the scholarship-aid is to be considered compensation it would consequently lose the standing of non-taxable income and the players could then be placed in a position where they would have to pay taxes on their scholarship.[xiii]

The idea that the players constitute employees is also based on the level of control that the coaches have in regards to the players’ time. They issue itineraries, determine where the players stay before games, require notification regarding outside employment, require approval for living arrangements, and prohibit gambling and drug use.[xiv] However, there is no consideration of the fact that non-scholarship players can also be subject to this control, for the very reason that they are part of the football team and seen as the face of the university.

Finally, if the N.L.R.B. affirms the Regional Directors determination that the football players are employees it could open the door for other football teams and sports to attempt to unionize. While on the surface this seems to be an incidental issue of little consequence, it is the opposite. The fact that different unions could enter different schools, or the same union into different schools, creates this situation where different teams would have different bargaining agreements and variance of benefits compared to other schools. The variety of bargaining agreements would essentially frustrate the very purpose of the NCAA (National Collegiate Athletic Association), the body that governs the competition of collegiate sports: to create a level playing field for all collegiate sports.[xv]

Therefore, allowing the Northwestern football team to be considered employees frustrates the purpose behind the NCAA; will potentially create a situation where players will owe money on their taxes; could possible disturb the collegiate environment promoted on college campuses; and also conclude that scholarship-aid is not a large enough factor to differentiate the players from non-scholarship athletes in order to institute a bargaining unit. Thus, in review, if the court follows the common law test for employees determination of employee will probably result. Additionally, if it is found that the Brown University test should be applied the student status of the players and their interrelated status as students would prohibit the determination that they are employees.

[i] Transcript of Oral Argument at 6, In re Northwestern University, 2014 (13-RC-121359).

[ii] Id. 6-7

[iii] Northwestern University v. College Athletes Players Association, Case 13-RC-121359 at 18 (N.L.R.B. Mar. 26, 2014).

[iv] Id. at 23.

[v] 29 U.S.C. § 152(3) (1978) (“employee shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise…”).

[vi] Northwestern University, Case 13-RC-121359 at 13 (N.L.R.B. Mar. 26, 2014); NLRB v. Town & Country Electric, 516 U.S. 85, 94 (1995).

[vii] Northwestern University, Case 13-RC-121359 at 13 (N.L.R.B. Mar. 26, 2014).

[viii] Id. at 15-16.

[ix] Northwestern University, Case 13-RC-121359 at 1 (N.L.R.B. Apr. 24, 2014).

[x] Transcript of Oral Argument at 7, In re Northwestern University, 2014 (13-RC-121359).

[xi] Id.

[xii] See 26 U.S.C. § 117 (2001).

[xiii] See 26 U.S.C. § 61 (1984); 26 U.S.C. § 63 (2009).

[xiv]  Northwestern University, Case 13-RC-121359 at 16 (N.L.R.B. Mar. 26, 2014).

[xv] National Collegiate Athletic Association, Frequently-Asked Questions About the NCAA (Nov. 25, 2014),