NLRB Rules Northwestern Football Players Can Unionize, Professor Rober McCormick, Michigan State School of Law

Northwestern University quarterback Kain Colter has pushed for unionization of their football players, as they are considered employees of the university.  The NLRB has ruled that the Northwestern football players can unionize, which is a major decision, that, if it holds up, will be a "major change in the way we view college sports," says Robert McCormick, Professor at Michigan State University's College of Law.

The NCAA created the term "student athlete" back in the early 1950's, in reaction to a decision out of Colorado which held that an injured football player was an employee of the university and was entitled to workman's compensation, says McCormick.  The NCAA was immediately alarmed by the decision and created the term "student athlete," and has been trying to impress upon the American public that these men are students and not employees of universities.  However, the recent decision yesterday affirms that the reality of the situation is they're not in universities primarily for their education but for their school teams, McCormick adds.

The legal standard for what constitutes an employee is a very simple one, according to McCormick, which is that it looks to see if the person is performing services for someone else for compensation, which is the case with student athletes, in terms of college costs being paid by the university.  Additionally, another part of the employee "test" is if they're under control or right of control of the employer and the facts of the Northwestern case indicate these men are under very tight control of coaches and the athletic staff at the university, McCormick says.

This is a primarily economic relationship between student and university and not primarily academic, notes McCormick, adding that universities and the NCAA have long taken the position that student athletes are not employees, rather that they're given a grant or aid.  The fact is, they do receive compensation and "it's the reality that the NCAA has been trying to avoid for a great long time," McCormick says.

This particular decision will only apply to private universities, like Northwestern because the National Labor and Relations Act only governs private employers, indicates McCormick.  For public universities, students would have to proceed under state law and many states have statutues like the Labor and Relations Act, which give public employees the right to bargain collectively.

Another implication of this decision is that there are a great number of laws that deal with the employee relationship, says McCormick.  The question will arise that if they're employees for purposes of the Labor and Relations Act, are they employees of workman's compensation?  While this is a totally separate question that the decision wouldn't directly answer, it is, in McCormick's opinion, something an athlete might seek for relief under another law.

McCormick notes that Northwestern football players, if they go anywhere, have to let coaches know of their itinerary and return to campus on Christmas morning, which is just one example of the "astonishing amount of control that's exercised over these young men," McCormick says.  There is more control over football and basketball players than any other student or employee of these universities and if they don't do what they're supposed to, they lose compensation.

There is a pretty good chance of this decision happening, McCormick believes, and that it will be appealed to the NLRB in Washington, D.C.  Assuming the board agrees with the Regional Director's decision, it will go to the U.S. Court of Appeals for another layer of review.  McCormick doubts it will go to the U.S. Supreme Court and if it all gets upheld, an election will take place and if the majority of the employees want a union, they will get a union.



Robert McCormick is a Professor of Law at Michigan State University's School of Law.  For more information on him, click here.  He spoke with the Legal Broadcast Network, providing online, on-demand, legal video content and is a featured network of Sequence Media Group.

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