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Analyzing the NLRB's decision in favor of the Northwestern football players

The NLRB ruled in favor of Northwestern's football players. What does the decision mean?

Matt Marton-USA; TODAY Sports

Peter Ohr, a regional director for the National Labor Relations Board (NLRB), ruled Wednesday that Northwestern's football players and the College Athletes Players Association (CAPA) are employees of Northwestern University under the National Labor Relations Act and have the right to unionize and collectively bargain.

Following the decision, Northwestern issued a statement that disagreed with the ruling and said that the University plans to appeal the decision.

In his 24-page decision Ohr outlined his reasoning for ruling in favor of the Northwestern football players' employment status, as well as CAPA's legality as a recognizable union.

In the analysis of his decision, Ohr focused on two main aspects: the legal standing of the Northwestern football players as employees and that the Brown University case, in which graduate assistants were not granted employment status, is not applicable to the Northwestern case.

Defining an employee

"Under the common law definition, 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."

Common law, in United States law, is law that is based on previous rulings made by judges. As opposed to code law, which is the strict words written into federal or state law, common law is often times more applicable and easier to understand.

In this instance, Ohr chooses to explicitly state the common law definition of an employee and goes on to argue why Northwestern's scholarship football players fit under that definition.

The scholarship football players are compensated for services they perform for the benefit of the employer

"Understandably, the goal of the football program is to field the most competitive team possible. To further this end, players on scholarship are initially sought out, recruited and ultimately granted scholarships because of their athletic prowess on the football field. Thus, it is clear that the scholarships the players receive is compensation for the athletic services they perform for the Employer throughout the calendar year, but especially during the regular season and postseason."

In this section, Ohr outlines that the scholarship football players are recruited to Northwestern to play football and that football allows the employer to benefit economically. For example, Ohr writes that when the football team is more successful, applications to the University and purchases of licensed merchandise increase, benefitting Northwestern economically.

Further, Ohr declares that the athletic scholarships are  compensation and it does not matter that the athletic grant-in-aid is not taxed. He also discusses that players sign "tenders" that act as a contractual agreement between Northwestern and the players. It explains the conditions and timing under which the compensation, or scholarship money, will be provided to them. These "tenders" signify a type of contractual agreement, according to Ohr, that gives the employees compensation that many completely rely on "for basic necessities, including food and shelter."

The football players are subject to the employer's control

"In addition, the coaches have control over nearly every aspect of the players' private lives by virtue of the fact that there are many rules that they must follow under threat of discipline and/or the loss of a scholarship. The players have restrictions placed on them and/or have to obtain permission from the coaches 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. The fact that some of these rules are put in place to protect the players and the Employer from running afoul of NCAA rules does not detract from the amount of control the coaches exert over the players' daily lives."

Ohr begins his argument about the employer's control of the football players through an examination of football-related activities. He points out the tremendous amount of hours and scheduling the coaches force upon the players with the threat of discipline for lack of adherence.

"If a player arrives late to practice," Ohr writes, "they must attend one hour of study hall on consecutive days for each minute they were tardy. The players must also run laps for violating minor team rules. And in instances where a player repeatedly misses practices and/or games, he may be deemed to have voluntarily withdrawn from the team and will lose his scholarship. In the same way, a player who violates a more egregious rule stands to lose his scholarship or be suspended from participating in games."

Therefore, he contends, the University and the coaching staff have complete control over the employees' compensation and activity as it pertains to football-related activities.

These facts are all commonplace and are well understood by anyone who has ever played an organized sport: the coach has final say and a player should abide by his or her rules or suffer the consequences.

But on the opposite side of that coin, Ohr delves into players' private lives. He contends that that extent to which Northwestern attempts to control football players' non-football lives is also a major factor in determining whether the employer has control over the employee. Ohr contends that the football program's rules regarding many private aspects of players' lives (listed in the above passage) demonstrate the employer's extensive control over the employees.

As far as the impact that the control over the employees has, Ohr argues that this control effects the employees' academic progress. Taking Kain Colter's testimony regarding his inability to take certain courses during certain quarters, thus limiting his degree choices, Ohr argues that the football program restricts the players' ability to freely choose their academic courses proving that for many football players, football is forced to come before academics.

Walk-ons are not deemed employees

"The walk-ons, on the other hand, have nothing tying them to the football team except their "love of the game" and the strong camaraderie that exists among the players. That some of the walk-ons may also have aspirations of earning a football scholarship does not change the fact that they do not receive any compensation at that point in their collegiate football careers. Thus, the mere fact that they practice (and sometimes play) alongside the scholarship players is insufficient to meet the definition of 'employee.'"

Basically, Ohr writes that walk-ons cannot be defined as employees because they are not compensated for playing football like the scholarship players are.

Scholarship football players are not "primarily students"

"Obviously, the players are also required to spend time studying and completing their homework as they have to spend time practicing their football skills even without the direct orders of their coaches. But it cannot be said that they are 'primarily students' who 'spend only a limited number of hours performing their athletic duties.'"

In the case involving Brown University graduate students, the NLRB ruled that the petitioners duties made them "primarily students" and not teachers or employees of Brown. Northwestern's legal counsel aimed to use Brown as a precedent, but Ohr found that its claim was not applicable to the case involving Northwestern's football players. His first reason for doing so was explaining how the football players are not student-athletes but rather athlete-students.

Based on the amount of time the football players spend playing and practicing football, Ohr continually argued throughout the decision that football takes priority over academics. To illustrate his opinion, Ohr points out that players do not even attend academic classes during the weeks of training camp and the first few weeks of the regular season.

Football is not a core part of the employees' educational progress

"The fact that the players undoubtedly learn great life lessons from participating on the football team and take with them important values such as character, dedication, perseverance, and team work, is insufficient to show that their relationship with the Employer is primarily an academic one. Indeed, as already discussed above, this relationship is an economic one that involves the transfer of great sums of money to the players in the form of scholarships."

Northwestern legal team spent a significant amount of time during Colter's testimony trying to prove that he gained valuable experience from playing football that could be applicable to his educational experience. The lawyers succeeded in doing so, but Ohr deemed that fact to be insufficient in the argument.

The key aspect of this part of Ohr's decision is that the relationship between the players and the University is an economic one, equitable to that of an employee and its employer. Ohr writes that it is "... undisputed that the Employer's scholarship players do not receive any academic credit for playing football."

Ohr also points out that although scholarship football players are required to play football to obtain their compensation, they are not required to play football to obtain their academic degree.

Athletic academic staff does not oversee athletic activities

"...football coaches, who are not members of the academic faculty, are responsible for supervising the players' athletic duties. 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."

In the Brown University case, their supervisors were also academic staff members that assisted the graduate students in their studies. For the most part, Ohr writes that Northwestern's football staff oversees football-related activities only, making football, in Ohr's opinion, not related to academics.

Grant-in-aid scholarships for football players are not the same as financial aid

"Unlike the graduate assistants, the facts here show that the Employer never offer[s] a scholarship to a prospective student unless they intend to provide an athletic service to the Employer. In fact, the players can have their scholarships immediately canceled if they voluntarily withdraw from the football team... In contrast to scholarships, need-based financial aid that walk-ons (and other regular students) receive is not provided in exchange for any type of service to the Employer."

Ohr makes an important distinction in this aspect of his argument between what a normal student or a walk-on might receive from Northwestern as opposed to an athletic scholarship. According to Northwestern, about 60 percent of the school's undergraduates receive some form of financial aid but this monetary aid is not compensation because it is not given to students in a transaction involving a service to the employer. Also, Ohr makes an interesting point that "scholarship offers" are not given out to students who are not recruited to the school for an athletic service.

Finally, Ohr showcases that walk-ons who receive non-athletic financial aid can voluntarily withdraw from the team without endangering their financial aid. Players who receive athletic grant-in-aid scholarships are in danger of losing their scholarships if they are to withdraw from the football team. In essence, Ohr argues that the athletic scholarship ties the employees to their employer much like a salary is given to an employee from their employer under the condition that they perform a service.

Scholarship football players are not temporary employees

"On the other hand, where employees are employed for one job only, or for a set duration, or have no substantial expectancy of continued employment and are notified of this fact, and there have been no recalls, such employees are excluded as temporaries."

Northwestern briefly argued that Northwestern's football players should be considered temporary employees and not eligible to form a union because they are only at school for four or five years. In another example of common law, Ohr referred to the general test of temporary employees which is whether the employees have uncertain tenure. In this case, the football players are made aware of their eligibility limits and their tenure is not uncertain.

The scholarship football players form an appropriate unit for unionization

"Indeed, the Employer contends that the 'only' difference between the two groups is that the scholarship players receive compensation for their athletic services. The receipt of this compensation in and of itself is a substantial difference in whatever community of interests exists between the two groups. Fundamentally, walk-on players do not share the significant threat of possibly losing up to the equivalent of a quarter million dollars in scholarship if they stop playing football for the Employer as do the scholarship players."

Because only the scholarship players receive compensation in the form of athletic grant-in-aid, Northwestern's legal counsel questioned whether the walk-ons--who participate in the same schedule as scholarship players--would represent a fractured group of employees. In this case, Ohr disagrees with Northwestern saying that the athletic grant-in-aid is a big enough difference between the two groups because it affects a players ability to voluntarily remove himself from the football team.

Ohr also pointed out that in order to legally declare a "fractured unit" under the National Labor Relations Act, the excluded group must be employees and walk-ons are not.

CAPA is a legal labor organization

"At the hearing, the Petitioner introduced evidence that it was established to represent and advocate for certain collegiate athletes, including the Employer's players who receive scholarships, in collective bargaining with respect to health and safety, financial support, and other terms and conditions of employment. A substantial portion of the Employer's scholarship players have also signed authorization cards seeking to have the Petitioner represent them for the purposes of collective bargaining, and some of them, have taken a more active role with the Petitioner, including [Kain] Colter."

Although this can be considered more of a formality, Ohr did find that the petitioner, CAPA, can be considered a labor union. By definition, a labor union must "exist for the purpose, in whole or in part, of dealing with employers on [the employees'] behalf regarding their wages, hours of employment and other terms and conditions of employment."

According to Ohr, CAPA fit this mold and is free to hold elections immediately.