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Northwestern Asks National Labor Relations Board to Overturn Regional Director's Ruling on Football Players Unionization

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July 3, 2014 | by Alan K. Cubbage

EVANSTON, Ill. --- Northwestern University today (July 3, 2014) asked the full National Labor Relations Board (NLRB) to overturn a ruling by the NLRB Chicago regional director earlier this year that Northwestern scholarship football players are employees and may be represented by a union.

Northwestern’s brief states that the regional director overlooked or ignored key evidence that Northwestern presented showing that its student-athletes are primarily students, not employees. The brief was filed today with the NLRB in Washington, D.C. There is no set timetable for the NLRB to issue a ruling on the issue.

“This case … poses the novel issue whether Northwestern’s decision to offer some of its football team’s student-athletes full scholarships transforms what has always been a cooperative educational relationship between university and student into an adversarial employer-employee relationship. On the record before the Board, there is no reason in law or policy to conclude that it does,” the brief states.

Northwestern argues that the regional director improperly refused to apply the legal precedent established in the NLRB’s 2004 decision regarding Brown University, in which the NLRB held that graduate assistants were primarily students, not employees.

“The Brown test for distinguishing between students and employees represents a well-reasoned approach, taking into account appropriate statutory and policy considerations, and that approach should be applied in determining that Northwestern’s scholarship football players are primarily students, and not employees, within the meaning of the Act,” the brief states.

Instead the regional director's decision relied incorrectly on a common-law definition of employee that considered the amount of control an employer has over an employee.

“There is no evidence that Northwestern places its football student-athletes under ‘strict and exacting control’ throughout the year as found by the Regional Director,” the brief states. “All Northwestern students -- not just scholarship student-athletes -- are subject to conduct rules, such as policies on off-campus housing, hazing, gambling, academic dishonesty, drug and alcohol use, IT systems use, and possession or use of weapons.”

In addition, the decision by the regional director ignored key evidence that Northwestern presented at the recent hearing in Chicago, specifically regarding the fact that academics is the primary mission of Northwestern for all of its students, including student-athletes.

“Northwestern’s football student-athletes pursue more than 20 distinct majors across the various undergraduate and graduate programs, consistently maintain a cumulative GPA over 3.0, and graduate at a 97 percent rate, best in the nation,” the brief states. “The Regional Director merely ‘noted’ this evidence in passing, and ignored its significance in demonstrating that the relationship between Northwestern and its student-athletes is primarily educational, not economic.”

The decision also discounted testimony from three former Northwestern football players that their academic activities were their top priority. All three testified at the Chicago hearing that they were permitted to leave practice early to go to class and that they were never directed to change their major or not to take a particular class because of potential conflict with football activities.

“Academic scheduling takes precedence over football scheduling,” the brief states. “That the relationship between Northwestern and its student-athletes is an educational, and not an economic, one is underscored by the extraordinary steps Coach Fitzgerald has taken to minimize conflicts between football practice and student-athletes’ academic schedules.”

The brief also points out that:

  • Northwestern provides four-year scholarships for student-athletes, not one-year scholarships, as is done at some other universities. The scholarship is extended for an additional year if the student-athlete is “redshirted,” or held out for a year.
  • Northwestern provides primary or secondary medical coverage for all student-athletes while they are enrolled, and for up to a year -- and sometimes longer -- after their eligibility expires.
  • Many of the rules regarding what is allowed in terms of scholarships and additional support for players are made by the Big Ten Conference and/or the NCAA and are not controlled by Northwestern.
  • Extending collective bargaining rights to scholarship football student-athletes and paying some participants in a men’s sport, but not participants in women's sports, would violate Title IX, which requires colleges and universities that receive federal funding to provide equal opportunities in varsity sports to female athletes.

“We hope that the full NLRB will rule that Northwestern’s football scholarship athletes are not employees and the petition seeking an election for the players to vote on union representation will be dismissed,” said Alan K. Cubbage, vice president for University Relations at Northwestern. “We applaud our players for bringing national attention to these important issues, but we strongly believe that unionization and collective bargaining are not the appropriate methods to address these concerns.”

The Northwestern brief is available on the Web at http://dradis.ur.northwestern.edu/multimedia/pdf/nlrbappeal.pdf.