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Why NU Football Players Are Employees

"The regional director of the National Labor Relations Board in Chicago, Peter Sung Ohr, ruled Wednesday that Northwestern University football players are university employees and entitled to an election that will determine whether they can form a union," ESPN reports. "The blockbuster ruling and Ohr's reasoning raise significant legal questions."

Let's take a look.

"Ohr based his conclusion primarily on the enormous revenue and benefit that result from the efforts of the Northwestern football players and on the rigorous control that Wildcats coaches have over the lives of the scholarship athletes," ESPN's Chicago-based legal analyst Lester Munson told the network.

"The first thing that Ohr mentioned as he began to explain his decision was that Northwestern enjoyed football revenue of $235 million over the nine years between 2003 and 2012.

"Clearly impressed with that enormous income, Ohr explained somewhat unnecessarily that the university could use this 'economic benefit' in 'any manner it chose.'

"It wasn't just the money, though, Ohr added. There is also the 'great benefit' of the 'immeasurable positive impact to Northwestern's reputation a winning football team may have.'

"Ohr also was impressed with the hour-by-hour, day-by-day control that the coaching staff has over players' lives.

"He devoted more than 10 pages of his 24-page opinion to a detailed description of practice schedules, workout requirements and coaches' supervision, including approval of living arrangements, registration of automobiles, control of the use of social media (a player must be connected to a coach), dress codes, restrictions on off-campus travel and demanding study schedules.

"It was the kind of control, Ohr concluded, that an employer has over an employee, not the kind of control a school has over a student."

Here's full video of Munson:


Munson says Northwestern has a tough road ahead regarding an appeal.

"Northwestern will have a difficult time convincing the labor board in Washington that Ohr was wrong. In addition, Northwestern will be up against three members of the board recently appointed by President Barack Obama who are likely to lean in the direction of the union and against the university."

Not sure why Obama appointees should be assumed to be pro-union, but there you go.

Munson also said in an interview for which I could not find video that Ohr's ruling was essentially airtight. I agree. Ohr destroyed what turned out to be a rather weak case presented by Northwestern. To wit:

The Employer's Football Players are Subject to Special Rules

As has already been alluded to, the Employer's players (both scholarship players and walk-ons) are subject to certain team and athletic department rules set forth, inter alia, in the Team Handbook that is applicable solely to the Employer's players and Northwestern's Athletic Department Handbook. Northwestern's regular student population is not subject to these rules and policies . . .

Similarly, players are required to disclose to their coaches detailed information pertaining to the vehicle that they drive.

The players must also abide by a social media policy, which restricts what they can post on the internet, including Twitter, Facebook, and Instagram.

In fact, the players are prohibited from denying a coach's 'friend' request and the former's postings are monitored.

The Employer prohibits players from giving media interviews unless they are directed to participate in interviews that are arranged by the Athletic Department.

Players are prohibited from swearing in public, and if a player 'embarrasses' the team, he can be suspended for one game. A second offense of this nature can result in a suspension up to one year.

Players who transfer to another school to play football must sit out a year before they can compete for the new school.

Players are prohibited from profiting off their image or reputation, including the selling of merchandise and autographs.

Players are also required to sign a release permitting the Employer and the Big Ten Conference to utilize their name, likeness and image for any purpose.

The players are subject to strict drug and alcohol policies and must sign a release making themselves subject to drug testing by the Employer, Big Ten Conference, and NCAA. The players are subject to anti-hazing and anti-gambling policies as well.

During the regular season, the players are required to wear a suit to home games and team issued travel sweats when traveling to an away football game. They are also required to remain within a six-hour radius of campus prior to football games.

If players are late to practice, they have to attend one hour of study hall on consecutive days for each minute they were tardy. Players may also be required to run laps for violating less egregious team rules.

Even the players' academic lives are controlled as evidenced by the fact that they are required to attend study hall if they fail to maintain a certain grade point average (GPA) in their classes. And irrespective of their GPA, all freshmen players must attend six hours of study hall each week.

Football Players' Time Commitment to Their Sport

The first week in August, the scholarship and walk-on players begin their football season with a month-long training camp, which is considered the most demanding part of the season.

In training camp (and the remainder of the calendar year), the coaching staff prepares and provides the players with daily itineraries that detail which football-related activities they are required to attend and participate in.

The itineraries likewise delineate when the players are to eat their meals and receive any necessary medical treatment

For example, the daily itinerary for the first day of training camp in 2012 shows that the athletic training room was open from 6:30 a.m. to 8:00 a.m. so the players could receive medical treatment and rehabilitate any lingering injuries.

Because of the physical nature of football, many players were in the training room during these hours.

At the same time, the players had breakfast made available to them at the N Club.

From 8:00 a.m. to 8:30 a.m., any players who missed a summer workout (discussed below) or who were otherwise deemed unfit by the coaches were required to complete a fitness test. The players were then separated by position and required to attend position meetings from 8:30 a.m.

If the Employer is found to be in violation of NCAA regulations, it can be penalized by the imposition of practice limitations, scholarship reductions, public reprimands, fines, coach suspensions, personnel limitations, and postseason prohibitions.

It is undisputed that the Employer sells merchandise to the public, such as football jerseys with a player's name and number, that may or may not be autographed by the player . . .

The players were also required to watch film of their prior practices . . . Following these meetings, the players had a walk-thru from 11:00 a.m. to 12:00 p.m. at which time they scripted and ran football plays. The players then had a one-hour lunch during which time they could go to the athletic training room, if they needed medical treatment. From 1:00 p.m. to 4:00 p.m., the players had additional meetings that they were required to attend.

Afterwards, at 4:00 p.m., they practiced until team dinner, which was held from 6:30 p.m. to 8:00 p.m. at the N Club. The team then had additional position and team meetings for a couple of more hours. At 10:30 p.m., the players were expected to be in bed ("lights out") since they had a full day of football activities and meetings throughout each day of training camp.

After about a week of training camp on campus, the Employer's football team made their annual trek to Kenosha, Wisconsin for the remainder of their training camp where the players continued to devote 50 to 60 hours per week on football related activities.

After training camp, the Employer's football team starts its regular season which consists of 12 games played against other colleges, usually played on Saturdays, between the beginning of September and the end of November.

During this time, the players devote 40 to 50 hours per week to football-related activities, including travel to and from their scheduled games.

During each Monday of the practice week, injured players must report to the athletic training room to receive medical treatment starting at about 6:15 a.m.

Afterwards, the football coaches require the players to attend mandatory meetings so that they can begin to install the game plan for their upcoming opponent.

However, the only physical activity the coaches expect the players to engage in during this day is weightlifting since they are still recovering from their previous game.

The next several days of the week (Tuesday through Thursday), injured players must report to the athletic training room before practice to continue to receive medical treatment.

The coaches require all the players to attend mandatory practices and participate in various football- related activities in pads and helmets from about 7:50 a.m. until 11:50 a.m.

In addition, the players must attend various team and position meetings during this time period. Upon completion of these practices and meetings, the scholarship players attend a mandatory "training table" at the N Club where they receive food to assist them in their recovery. Attendance is taken at these meals and food is only provided to scholarship players and those walk-ons who choose to pay for it out of their own pocket . . .

During the regular competition season, the players' schedule is different on Friday than other days of the week because it is typically a travel day. For home games, the team will initially meet at 3:00 p.m. and have a series of meetings, walk-thrus and film sessions until about 6:00 p.m. The team will then take a bus to a local hotel where the players will be required to have a team dinner and stay overnight. In the evening, the players have the option of attending chapel and then watching a movie. At the conclusion of the movie, the players have a team breakdown meeting at 9:00 p.m. before going to bed.

About half of the games require the players to travel to another university, either by bus or airplane. In the case of an away game against the University of Michigan football team on November 9, 2012,15 the majority of players were required to report to the N Club by 8:20 a.m. for breakfast.

At 8:45 a.m., the offensive and defensive coaches directed a walk-thru for their respective squads. The team then boarded their buses at 10:00 a.m. and traveled about five hours to Ann Arbor, Michigan.16 At 4:30 p.m. (EST), after arriving at Michigan's campus, the players did a stadium walk-thru and then had position meetings from 5:00 p.m. to 6:00 p.m.

The coaches thereafter had the team follow a similar schedule as the home games with a team dinner, optional chapel, and a team movie. The players were once again expected to be in bed by 10:30 p.m.

On Saturday, the day of the Michigan game, the players received a wake-up call at 7:30 a.m. and were required to meet for breakfast in a coat and tie by no later than 8:05 a.m. The team then had 20 minutes of meetings before boarding a bus and departing for the stadium at 8:45 a.m.

Upon arriving at the stadium, the players changed into their workout clothes and stretched for a period of time. They afterwards headed to the training room to get taped up, receive any medical treatment, and put on their football gear . . .

The football team's handbook states that "when we travel, we are traveling for one reason: to WIN a football game. We will focus all of our energy on winning the game."

However, the players are permitted to spend two or three hours studying for their classes while traveling to a game as long as they, in the words of Head Coach Fitzgerald "get their mind right to get ready to play . . ."

The Recruitment and Academic Life of the Employer's Grant-in-Aid Scholarship Players

The record makes clear that the Employer's scholarship players are identified and recruited in the first instance because of their football prowess and not because of their academic achievement in high school. Only after the Employer's football program becomes interested in a high school player based on the potential benefit he might add to the Employer's football program does the potential candidate get vetted through the Employer's recruiting and admissions process . . .

After being pre-approved for admission, recruits selected to receive an offer of scholarship are informed of their pre-admission via letter by Coach Fitzgerald notifying the potential players:

"CONGRATULATIONS, the Northwestern Football Staff and I would like to offer you a full scholarship... You possess the talent and embody the characteristics and values necessary to succeed at Northwestern University as a student-athlete on our football team" . . .

According to Blais, there are no written guidelines in terms of a minimum GPA or standardized test score that a football recruit must have to gain admission to the University. She testified that the lowest GPA for a football recruit that she recalled discussing with the admissions office was 2.78 (on scale of 4.0) . . .

According to senior quarterback Kain Colter, following a successful high school football career, the Employer admitted him due to his football skills as his academic record was "decent." He also testified that he based his decision to attend Northwestern on football considerations (i.e. they were going to let him play quarterback).

But he still had aspirations of going to medical school and attempted to take a required chemistry class in his sophomore year. At that time, Colter testified that his coaches and advisors discouraged him from taking the class because it conflicted with morning football practices.

Colter consequently had to take this class in the Summer session, which caused him to fall behind his classmates who were pursuing the same pre-med major. Ultimately he decided to switch his major to psychology which he believed to be less demanding.

Colter further testified that those players receiving scholarships were not permitted to miss football practice during the regular season if they had a class conflict. On the other hand, walk-ons were permitted to leave practice a little early in order to make it to class.

This continued in the Spring with scholarship players being told by their coaches and academic/athletic advisors that they could not take any classes that started before 11:00 a.m. as they would conflict with practice.

Even during the Summer session, players were generally only permitted to enroll in classes that were 6 weeks long since the classes that were 8 weeks long would conflict with the start of training camp . . .

The Revenues and Expenses Generated by the Employer's Football Program

The Employer's football team generates revenue in various ways including: (1) ticket sales; (2) television broadcast contracts with various networks; and (3) the sale of football team merchandise.

The Employer reported to the Department of Education that its football team generated total revenues of $235 million and incurred total expenses of $159 million between 2003 and 2012.

For the 2012-2013 academic year, the Employer reported that its football program generated $30.1 million in revenue and $21.7 million in expenses.

However, the latter figure does not include costs to maintain the stadium which total between $250,000 and $500,000 per calendar year.

In addition, the profit realized from the football team's annual revenue is utilized to subsidize the Employer's non-revenue generating sports (i.e. all the other varsity sports with the exception of men's basketball). This, in turn, assists the Employer in ensuring that it offers a proportionate number of men's and women's varsity sports in compliance with Title IX of the Education Amendments of 1972 . . .

The Applicable Legal Standard

As the record demonstrates, players receiving scholarships to perform football-related services for the Employer under a contract for hire in return for compensation are subject to the Employer's control and are therefore employees within the meaning of the Act . . .

Grant-in-Aid Scholarship Football Players Perform Services for the Benefit of the Employer for Which They Receive Compensation

That the scholarships are a transfer of economic value is evident from the fact that the Employer pays for the players' tuition, fees, room, board, and books for up to five years. Indeed, the monetary value of these scholarships totals as much as $76,000 per calendar year and results in each player receiving total compensation in excess of one quarter of a million dollars throughout the four or five years they perform football duties for the Employer.

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. And those players who elect to live off campus receive part of their scholarship in the form of a monthly stipend well over $1,000 that can be used to pay their living expenses.

Equally important, the type of compensation that is provided to the players is set forth in a "tender" that they are required to sign before the beginning of each period of the scholarship. This "tender" serves as an employment contract and also gives the players detailed information concerning the duration and conditions under which the compensation will be provided to them.

Because NCAA rules do not permit the players to receive any additional compensation or otherwise profit from their athletic ability and/or reputation, the scholarship players are truly dependent on their scholarships to pay for basic necessities, including food and shelter.

Another consequence of this rule is that all of the players generally receive the same compensation for their services. In other words, the team's best scholarship player is paid as much as any other member of the Employer's football team receiving a scholarship . . .

The Employer's Grant-in-Aid Scholarship Players are Employees Under the Common Law Definition

In sum, based on the entire record in this case, I find that the Employer's football players who receive scholarships fall squarely within the Act's broad definition of "employee" when one considers the common law definition of "employee."

However, I find that the walk-ons do not meet the definition of "employee" for the fundamental reason that they do not receive compensation for the athletic services that they perform.

Unlike the scholarship players, the walk-ons do not sign a "tender" or otherwise enter into any type of employment contract with the Employer.

The walk-ons also appear to be permitted a greater amount of flexibility by the football coaches when it comes to missing portions of practices and workouts during the football season if they conflict with their class schedule.

In this regard, it is noted that both scholarship players who testified, Colter and Ward, testified that they did not enroll in classes that conflicted with their football commitments. This distinction is not surprising given that the players are compelled by the terms of their "tender" to remain on the team and participate in all its activities in order to maintain their scholarship.

The walk-ons, on the other hand, have nothing tying them to the football team except their "love of the game" and the strong camaraderie that exists among the players. That some of the walk-ons may also have aspirations of earning a football scholarship does not change the fact that they do not receive any compensation at that point in their collegiate football careers. Thus, the mere fact that they practice (and sometimes play) alongside the scholarship players is insufficient to meet the definition of "employee" . . .

The Employer's Grant-in-Aid Scholarship Football Players are not "Primarily Students"

[I]t cannot be said the Employer's scholarship players are "primarily students." The players spend 50 to 60 hours per week on their football duties during a one-month training camp prior to the start of the academic year and an additional 40 to 50 hours per week on those duties during the three or four month football season. Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies . . .

The Petitioner is a Labor Organization Within the Meaning of the Act

At the hearing, the Petitioner introduced evidence that it was established to represent and advocate for certain collegiate athletes, including the Employer's players who receive scholarships, in collective bargaining with respect to health and safety, financial support, and other terms and conditions of employment.

A substantial portion of the Employer's scholarship players have also signed authorization cards seeking to have the Petitioner represent them for the purposes of collective bargaining, and some of them, have taken a more active role with the Petitioner, including Colter.

In addition, the players will presumably have the opportunity to participate in contract negotiations if the Petitioner is ultimately certified. Based on the evidence presented at the hearing and the Employer's conditional stipulation which was met, I find that the Petitioner is a labor organization within the meaning of the Act.







Comments welcome.

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Posted on Nov 26, 2021