Kain Colter and the Northwestern Wildcats have scored a big win at the expense of the NCAA and private universities. On Wednesday, the Chicago district of the National Labor Relations Board (NLRB) ruled that the college football players qualify as “employees” and are consequently entitled to unionize.

As summarized in our prior blog, Colter and his teammates filed union cards with the NLRB this winter, arguing that they are employees and not “student-athletes.” The NCAA’s position is that because the majority of student athletes do not play professional sports, the members of the Wildcats do not qualify for unionization.  Chief legal officer Donald Remy has stated, “We want student athletes — 99 percent of whom will never make it to the professional leagues — focused on what matters most — finding success in the classroom, on the field and in life.”

Under common law, “an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.” Brown Univ., 342 NLRB 483, 490, fn. 27 (2004). On Wednesday, NLRB regional director Peter Sung Ohr held that Northwestern scholarship players fall under such a definition. Northwestern Univ. v. Coll. Athletes Players Ass’n, 13-RC-121359, 2 (March 26, 2014).

To bolster the conception of scholarship players as employees that receive compensation, Ohr noted that scholarship players “typically receive grant-in-aid totaling $61,000” each year. Id. at 3. Importantly, such scholarships can be terminated if a player becomes ineligible from competition, voluntarily withdraws from the sport, or abuses team rules “as determined by the coach.” Id. at 4. In return, the players provide significant value to the school. Northwestern football generated $235 million in revenue between 2003 and 2012. Id. at 13.

In his opinion, Ohr also made special note of the level of control coaches have over the players. Northwestern football players are subject to restrictions or permission requirements before they can: “(1) make their living arrangements; (2) apply for outside employment; (3) drive personal vehicles; (4) travel off campus; (5) post items on the Internet; (6) speak to the media; (7) use alcohol and drugs; and (8) engage in gambling.” Id. at 16. Furthermore, players contribute “40 to 50 hours per week to football-related activities.” Id. at 6.

In Brown, the closest case on point (yet ruled inapplicable), a group of graduate assistants were determined not to be employees because their duties were primarily educational. 342 NLRB 483 (2004). In distinguishing Brown, Ohr suggested that Northwestern players perform non-academic duties and are supervised by coaches. Northwestern, 13-RC-121359, 18-19. According to Ohr, “This critical distinction certainly lessens any concern that imposing collective bargaining would have a ‘deleterious impact on overall educational decisions’ by the Employer’s academic faculty.” Id. at 19.

Northwestern has stated it will appeal, but the decision already has many questioning the nature of college sports. As always, we will continue to provide updates.