By: Allison Milano
Last week the National Labor Relations Board (“Board”) conducted hearings regarding Northwestern Football Players bid to form a union. The dispute is over whether college athletes should be considered ‘employees’ within the meaning of the National Labor Relations Act (“NLRA”). The NLRA defines the term “employee” broadly to “include any employee, and shall not be limited to employees of a particular employer…” Without specific guidance from the NLRA, the Board must interpret the meaning of “employee” and has done so in the context of post-secondary students on several occasions.
In Boston Med. Ctr. Corp. the Board focused on the breadth of the statutory language in the Act. It concluded that since the Act did not contain an explicit exclusion for “students” and absent a policy reason to exclude medical interns, residents, and fellows they came within the meaning of “employee” defined by the Act. Although the residents in Boston Med. Ctr. were receiving cash benefits, the Board relied on the dictionary definition of “employee” which includes “any person who works for another in return for financial or other compensation.” College athletes may not receive cash benefits, but certainly receive “other compensation” through scholarships for tuition, room, and board.
In 2004 the Board decided Brown Univ., where they were faced with deciding whether graduate assistants were ‘employees’ within the meaning of the NLRA. The Board denied graduate assistants the right to unionize because they were primarily students and had a primarily educational, not economic, relationship with the university. There were four main factors the Board analyzed in making its decision. First, the Board emphasized the fact that in order to be eligible for the job the individual must be enrolled. It then discussed the role of the work being performed in graduate education, noting that most of the assistant’s time was spent on obtaining their degree and that the work performed was a core element of the degree program. Third, the Board considered the extent of oversight by the faculty, highlighting the fact that the same faculty who taught the student would oversee assistantships. Lastly, the Board considered the form of financial support given to the students. Many students would receive scholarships in exchange for their work, which was deemed financial aid and not ordinary compensation. Ultimately, the Board concluded that the relationship was primarily educational, and thus the graduate assistants were not ‘employees’ within the meaning of the Act.
To support a finding for the athletes, they will have to show that their work as athletes is primary and separate from education. The answer here is not so clear, as the Brown factors are split. Cutting against the players is the fact that they must be enrolled in order to play football and that they receive scholarships—deemed ‘financial aid’ and not ordinary consideration for work. However, the other two factors seem to support their argument: (1) their work is overseen by coaches and not academic faculty; and (2) being an athlete is not part of or related to the degree program.
In an attempt to show that academics are deemed primary Northwestern University argued this week that “Northwestern officials are focused on making sure football never undermines players’ studies.” On the other hand, the players argue that the focus is on sports and not academics, claiming that the school admits football players with lower GPA’s than the minimum standard for regular admission.
Both sides point out the economics of the player’s relationship with the university. The players argue that the school’s football program is a commercial enterprise, and the relationship is that of an employer-employee. The College Athletes Players Association reported that Northwestern made a $76 million profit over ten years and thus suggests that it is a commercial enterprise. However, the University countered by explaining that when all the sports programs are considered together, athletics actually loses money. The hearing officer did not seem to think that profits and losses are relevant to the discussion of whether the players are employees.
If the Board deems the players as “employees”, they will be permitted to unionize and have additional NLRA protections.
 29 U.S.C. § 152(3) (1978).
 See generally Boston Med. Ctr. Corp., 330 N.L.R.B. 152 (1999); Brown Univ., 342 N.L.R.B. 483 (2004).
 Boston Med. Ctr. Corp., 330 NLRB 152, 160 (1999).
 NLRB v. Town & Country, 516 U.S. 85, 90 (1995).
 Brown Univ., 342 N.L.R.B. 483 (2004).
 Id. at 487.
 Id. at 488-489.
 Id. at 488.
 Id. at 489.
 Michael Tarm, Northwestern defends football program at hearing on players union bid, calls academics central, foxnews.com, (Feb. 20, 2014), http://www.foxnews.com/us/2014/02/20/northwestern-defends-football-program-at-hearing-on-players-union-bid-calls/