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Hofstra Labor & Employment Law Journal

Abstract

This article analyzes the first case of college athlete unionization under the National Labor Relations Act ("NLRA") that has reached the National Labor Relations Board – that of the Northwestern University football players. We reanalyze the case and concur with Region 13 of the NLRB, which determined that these college athletes are employees under the NLRA. However, we also go beyond Region 13's decision and argue that the walk-on players, or those football players who do not receive scholarships, may also be employees under the NLRA.

The grant-in-aid football players of Northwestern University meet the three rules normally used to determine employee status under the NLRA: the "right of control test," the "economic realities test," and the "primary purpose test." In essence, Northwestern University very clearly retains a right to control the college athletes in activities that lie outside of academics. We argue that the college athletes provide a valuable service, athletics, that has nothing to do with their academic degrees, and that they are subject to the supervision and control of NorthwesternUniversity when performing those services. Moreover, the college athletes are dependent on Northwestern University to cover their basic living expenses and degree costs at the university because they receive scholarships, perhaps also stipends, and because Northwestern Universityseverely limits the players’ capacity to make any money from other sources. Finally, the college athletes’ relationship with Northwestern University is not primarily one of "student," as the university argued before Region 13 of the NLRB, because the players’ athletic duties arecompletely unrelated to their academic duties. The players are both students and athletes. In fact, the college athletes’ capacity to curb further commercialization of their sport and protect their status as bona fide students may well hinge on their capacity to organize and bargain collectively against a much better-organized university.

Moreover, the purposes of the NLRA compel us to answer the question of employee status in no other way but the affirmative. The NLRA aims to provide employees, weaker parties in employment relationships, with bargaining rights in order to preserve industrial peace. Here, we have a case of a weaker party, the college athletes, who have been attempting to secure better terms and conditions with Northwestern University, including protections from catastrophic injuries and adequacy of compensation. This has led to significant strife with NorthwesternUniversity in the way of lawsuits and an organizing campaign. It is precisely these kinds of industrial disputes that the NLRA attempts to ameliorate through collective bargaining. Therefore, federal labor policy, in addition to the black letter rules, compels us to find the college athletes in this case to be employees under the NLRA.

We also argue that walk-on college athletes, or those in revenue-generating sports who do not receive scholarships, can potentially also be employees under the NLRA. Region 13 argued that these players were not employees because they did not receive compensation fromNorthwestern University. However, walk-ons likely have a "fundamentally economic relationship" with Northwestern University – the key principle under the NLRB’s compensation requirement for employee status – and, as such, may also be subject to the NLRB’s jurisdiction.

Finally, we also take note that the case of Northwestern University’s football players is significant beyond college sports. If college athletes in revenue-generating sports are seen for what they are, employees that are also students, other groups of workers in more precarious conditions, but in similar nonstandard contracts of employment, may fare better when they seek the aid of the law.

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