In a surprising decision on March 26, the NLRB Director for Region 13 covering Illinois and Indiana issued a decision and direction of election holding Northwestern University’s college football athletes are university “employees” as defined by the National Labor Relations Act (“NLRA”) and could vote whether to be represented by a union.
The decision focused on the grant-in-aid scholarships the athletes received to fund their education. If upheld, other grant-in-aid scholarship athletes across the country may be entitled to unionize. Northwestern University is expected to appeal this decision, which appears to have required some mental and legal gymnastics to justify its conclusion. The director concluded that scholarship football players perform services for the university’s benefit and for which they receive compensation, which qualifies them as an employee under the NLRA. In his analysis, the director applied the “right of control” rather than the “primary purpose” test, departing from past precedent.
Imagine if the decision is upheld by the full Board. Athlete recruiting may morph into something more akin to the antagonistic union bargaining with which we are familiar in the steel and automobile industries, among others.