As has been widely reported, football players at Northwestern University recently filed a petition with the National Labor Relations Board seeking an election to decide if they will be represented for purposes of collective bargaining by the College Athletes Players Association (CAPA), an organization backed by the United Steelworkers. What follows is a series of questions and answers about issues raised by this development.
1. Are the scholarship football players, all enrolled as students at Northwestern University, “employees” within the meaning of the National Labor Relations Act?
The petition reportedly seeks representation of the “scholarship” players on Northwestern’s football team, and whether they are “employees” is the first question that the National Labor Relations Board (Board) will address. The term “employee” is not defined in the National Labor Relations Act. The Board has generally used a traditional common law approach (has someone agreed to perform tasks or services for someone else for compensation) to decide employee status and has used the “right to control” test to distinguish employees from independent contractors. In most circumstances, the answer is obvious; in the case of the scholarship football players, it may not be.
Whether scholarship athletes can be deemed employees of a college or university has not been addressed by the Board previously. However, it is known that scholarship athletes receive things of value in return for complying with requirements imposed by the college or university. Scholarship football players generally receive the following at schools such as Northwestern:
- A full scholarship (or grant-in-aid) that covers the costs of tuition, registration/lab fees, housing, meals and books. Most scholarships are for a single academic year, although NCAA rules allow for multi-year scholarships. Presuming a single-year scholarship, NCAA rules require notification of non-renewal of a scholarship for the next academic year by July 1.
- Other products, services or arrangements in conjunction with team participation such as (i) apparel for practice and travel; (ii) travel to and from games; (iii) meal money after games; (iv) coaching; (v) physical health and development support (strength training, nutritionist, athletics trainer, team doctor); (vi) academic tutoring; and in some cases (vii) media training and promotion.
In return for such benefits, football players are expected to:
- Adhere to academic rules of the school, such as:
- Attending classes in a degree program
- Often, attending mandatory study hall or tutoring
- Achieving specified progress toward a degree with minimum grade-point averages
- Attend practices and games on a schedule set by the school.
- A typical in-season weekly schedule for a football player involves up to 20 hours of game competition, practice, strength training, film review, game travel and time in the training room for rehab and physical therapy.
- In the off-season, players can be required to attend up to 8 hours per week of practice and conditioning.
- Comply with rules of their school and rules established by the NCAA.
Many activities players are expected to perform (and almost all of their athletic activities) take place under the supervision, direction and control of university officials (e.g., coaches, trainers). If players do not satisfy university expectations, there can be consequences including dismissal from a team and loss of a scholarship.
Whether the Board will deem the foregoing to constitute an employment relationship and the football players to be employees within the meaning of the National Labor Relations Act is unknown. A closely, but not perfectly, analogous group of persons associated with universities that has been the subject of Board decisions are teaching assistants. The Board has gone back and forth on the status of teaching assistants, initially finding that they were not employees eligible for union representation, then finding that they were, then returning to the original position that they are not.
Factors viewed by the Board in assessing teaching assistants included:
- Their status as students
- The relationship of the “work” performed to the student-workers’ education
- The relationship between the persons who oversee or supervise the student-workers’ work activities to their education
- The relationship, or quid pro quo, between the work performed and the benefits received by the student-worker.
Whether the Board will apply the same factors to scholarship athletes as it did to teaching assistants, and whether, if so, the Board will come to the same conclusion, is unknown.
2. If the Board determines the football players are employees, what happens next?
The Board will assess the group of football players seeking representation to determine if they constitute an appropriate bargaining unit—an appropriate group to make the decision on union representation for the people involved and who have enough employment interests in common that collective bargaining would address their common employment terms effectively.
In the past as new industries became subject to union organizing, disputes about whether a bargaining unit was appropriate were often protracted and thus delayed elections to decide questions concerning union representation. However, in the wake of the Board’s decision in Specialty Healthcare a few years ago, it is less likely that disagreements over whether a larger, or otherwise different, bargaining unit might be more appropriate will delay an election.
The bargaining unit sought in the Northwestern University petition is reportedly made up solely of football players on scholarship. The Board may need to address whether such a unit is appropriate since the non-scholarship athletes (the walk-ons) are an integral part of the team and a bargaining unit that leaves them out may not be able to represent the interests of all those who must work together for the success of the enterprise.
3. Will the Board conduct an election if it finds the bargaining unit appropriate?
If the Board finds the bargaining unit appropriate, it will then review the evidence submitted by the Petitioner (CAPA) to determine if at least 30 percent of the athletes in the unit have expressed an interest in union representation, or at least interest in having an election to resolve the question. If so, the Board will proceed to schedule the election; if not, the Board will either dismiss the petition or advise the petitioner that it must come up with more evidence of interest in the election or union representation before it will proceed.
4. When would an election be scheduled?
The Board tries to resolve questions concerning representation quickly, attempting to hold elections within 42 days from the date a petition is filed. In the Northwestern University case, it is possible that protracted appeals of the question of employee status or of the appropriate bargaining unit could delay any election for a significant amount of time.
5. How is the outcome decided?
The election is decided based on the number of votes cast by eligible members of the bargaining unit. If at least 50percent plus one of the valid votes cast are in favor of union representation, the union will be certified as the representative of the football players for collective bargaining. Note that the majority that determines the outcome is not a majority of those eligible to vote, but by a majority of those eligible who actually vote. Just as in political elections for Congress or the presidency of the United States, voter turnout is important—if there are 80 eligible voters, but only 40 actually vote, 21 votes will be enough to decide the issue for everyone in the bargaining unit.
6. What happens between the date the Board orders an election and the election itself? Is there a campaign?
There can be a campaign. The union and the employer (Northwestern in this case) are permitted to communicate with eligible voters to persuade them to vote in favor of or against union representation. However, there are rules. For example, the employer and its agents are prohibited from interfering with the employee’s choice by threats, interrogation, promises of benefits (bribes) or spying on the employees’ discussions or other activities about union representation.[i] The union and its agents are prohibited from coercing or restraining employees’ choice by threats or bribes.
7. If the football players do not vote for union representation, what happens?
If the football players do not vote the union in as their bargaining representative, and the Board certifies the result of the election (finding no objectionable conduct occurred on the part of the employer that interfered with the result), no question concerning representation may be raised again in the same bargaining unit for at least 12 months from the date of the election.
However, many additional questions will have been raised by the Board’s determination that the football players are employees within the meaning of the National Labor Relations Act. Among the questions are:
- Will the football players be deemed employees for purposes of the Fair Labor Standards Act—the statute that, among other things, requires minimum wage and overtime payments to employees for all hours worked?
- Will the football players be deemed employees for purposes of state Worker Compensation laws that require coverage for injuries/illnesses that occur in the course of employment?
8. If the football players vote the union in, what happens?
If the football players vote for the union, and the Board certifies the result of the election (finding no objectionable conduct occurred on the part of the union that interfered with the result), then Northwestern will have a duty to bargain with the union in good faith for an agreement concerning the “wages, hours and other terms and conditions of employment” of the football players.
9. What are the topics that must be bargained?
The topics over which bargaining must occur upon request of either the union or the employer are called mandatory subjects of bargaining. They include any aspect of employment that falls within the broad phrase “wages, hours and other terms and conditions of employment.” How that phrase may be applied in the case of scholarship football players is unclear. “Wages” could include stipends in addition to the value of tuition; “hours” could include practice time and film viewing time, the time that athletes need to report for game travel, perhaps even the start of game time; “other terms and conditions of employment” could include medical benefits, athletic eligibility, tutoring assistance or other items. The list of subjects is not endless, but neither are its limits predictable.
10. Can this (a union election and collective bargaining by student-athletes) happen at any college or university?
Generally speaking, only private colleges and universities are subject to the National Labor Relations Act and to the jurisdiction of the Board. However, many public colleges and universities created and run by states and other political subdivisions may be subject to state laws that provide for union representation and collective bargaining for public employees. The rules and procedures governing the election and bargaining process in each state need to be examined to see how they may apply to the scholarship athletes in those jurisdictions.
11. Does the fact that all scholarship athletes will be at a given university only a few years, guaranteeing 100 percent turnover of the bargaining unit every few years, have an impact on the question concerning representation?
No, not under current Board law. Once a bargaining unit of employees has elected a union to represent it for purposes of collective bargaining, the union remains the representative of the bargaining unit until the union disclaims interest and “walks away” or is “decertified” in a subsequent Board election. Unless and until one of those events occurs, the Board presumes that a majority of the bargaining unit continues to support the union as the representative of the bargaining unit regardless of the amount of turnover in the ranks of the bargaining unit.
12. How does “decertification” occur?
Once a union is certified as the representative of a bargaining unit, its representative status may not be challenged for at least a year while it attempts to negotiate an initial collective bargaining agreement. Once a collective bargaining agreement is agreed upon, then with the exception of a brief period of time shortly before the agreement expires, no question concerning representation may be raised challenging the union’s representative status during the agreement’s term, for up to 3 years.
The brief period of time during which a question concerning representation may be raised is the 30-day period between 90 and 60 days before the collective bargaining agreement expires. During that 30 days, a petition may be filed with the Board seeking an election to see if the union will continue to be the representative of the employees in the bargaining unit.
There is a different rule in cases of collective bargaining agreements that last longer than 3 years.
A decertification petition filed by employees must be supported by the same minimum 30 percent “showing of interest” in getting rid of the union as was needed for the initial certification election. The employer may not instigate the petition—it must be an effort initiated and led by the employees themselves.
Such a petition may also be filed by the employer, if the employer has objective evidence that a majority of the employees in the bargaining unit no longer wish to be represented by the union. This type of petition is rare.
To further discuss issues like the Northwestern University football player union organizing effort or other employment or athletics issues that arise in the context higher education please do not hesitate to contact Ice Miller LLP.
This publication is intended for general information purposes only and does not, and is not intended to, constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.