Today Northwestern asked the full National Labor Relations Board to overturn the ruling that Northwestern scholarship football players are employees and may be represented by a union.
In the first decision of its kind in the history of college football, NLRB regional director Peter Sung Ohr said Northwestern football players could vote on whether they want the College Athletes Players Association to represent them in his March 26 ruling. Ohr mentioned that the players face “extraordinary time demands” while still meeting minimum grade point average.
Northwestern filed the brief today with the NLRB in Washington, D.C., and there is not a set timetable for when the NLRB will rule on the issue.
The University's brief states that Ohr's ruling ignored key evidence – including testimonials from three former Northwestern football players – that the athletes are primarily students. This evidence was provided at a recent hearing in Chicago. The students testified that they were allowed to leave practice early for class and that they were never encouraged to take different classes or change majors to fit their practice schedules.
“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 highlighted the facts that football student-athletes pursue a diverse array of majors, maintain a cumulative GPA over 3.0 and have a 97-percent graduation rate – the highest in the nation. Northwestern stated that Ohr “merely ‘noted’ this evidence in passing, and ignored its significance in demonstrating that the relationship between Northwestern and its student-athletes is primarily educational.”
The brief further states that “the football program is a part of Northwestern’s educational experience” and that Northwestern focuses on academics when recruiting students, including student-athletes. The University also argues that a scholarship offer is a financial aid award and not an employment offer.
Northwestern says Ohr did not apply the legal precedent established in the NLRB’s 2004 decision, which held that graduate assistants at Brown University were primarily students and 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 reads.
The University also argues the ruling incorrectly relied on a common-law definition of employee, which “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 reads. “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.”
The brief also mentions that extending collective bargaining rights and paying some participants in a men’s sport would violate Title IX, as female student-athletes would be excluded. Title IX 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,” says 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.”