NCAA v. NLRB: Athletes Forming a Labor Union

In an unprecedented movement, football players from Northwestern University applied to be officially recognized as a labor union on January 28 this year.  The petition was filed in Chicago by Ramogi Huma, a former UCLA linebacker and president of the National College Players Association.  The NCAA does not support the movement. A statement released by Jim Phillips, vice president for athletics and recreation, stated that Northwestern does not believe student athletes are employees and therefore a union is not appropriate.

This is likely to become a highly contested legal battle of whether these student athletes at private institutions are actually “employee-athletes” with rights under the National Labor Relations Act (NLRA).  The NLRA defines “employee” and “employer” rather vaguely, stating “the term ‘employee’ shall include any employee with a few listed exceptions.  The National Labor Relations Board (NLRB) has addressed somewhat similar situations with graduate students with mixed results.  In the 2004 NLRB Brown decision, the NLRB concluded that graduate students employed as teaching assistants, research assistants, and proctors were not “employees” within the meaning of the NLRA, overruling its previous decision in NYU.  The Brown decision was based on several factors, including the principle that the NLRB will not assert jurisdiction over relationships that are primarily educational as a pre-requisite to being a graduate student is to be a student of the University.  It also looked at the nature of the “payments” made to students, citing that the money they receive is not the same as that received by the faculty; it is not consideration for work, but financial aid to a student.

What will happen next with the Northwestern athletes is unpredictable, but it certainly will have far reaching effects on the NCAA if they are found to be “employees.”