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Saturday, March 29, 2014

NLRB Tackles NCAA Football

by Tommy Eden

Northwestern University’s Division 1 football team is comprised of about 112 players of which there are 85 players who receive football grant-in-aid scholarships that pay for their tuition, fees, room, board, and books. The players on a scholarship typically receive grant-in-aid totaling $61,000 each academic year. The grant-in-aid for the players’ tuition, fees and books is not provided directly to them in the form of a stipend as is sometimes done with room and board. Because Northwestern University’s football team has a rule requiring its players to live on campus during their first two years, these players live in a dorm room and are provided a meal card, which allows them to buy food at the school cafeteria. In contrast, the players who are upperclassmen can elect to live off campus, and scholarship players are provided a monthly stipend totaling between $1,200 and $1,600 to cover their living expenses. Under current NCAA regulations, Northwestern University is prohibited from offering its players additional compensation for playing football at its institution with one exception. Northwestern University is permitted to provide its players with additional funds out of a “Student Assistance Fund” to cover certain expenses such as health insurance, dress clothes required to be worn by the team while traveling to games, the cost of traveling home for a family member’s funeral, and fees for graduate school admittance tests and tutoring. The players do not have FICA taxes withheld from the scholarship monies they receive. Nor do they receive a W-2 tax form from the Employer.

The Northwestern University football players recently formed a union calling themselves the College Athletic Players Association (CAPA) and contend that football players receiving grant-in-aid scholarships from Northwestern University are “employees” within the meaning of the National Labor Relations Act, and therefore are entitled to choose whether or not to be represented for the purposes of collective-bargaining. Northwestern University, on the other hand, asserts that its football players receiving grant-in-aid scholarships are not “employees” under the Act and that these players are more akin to graduate students whom the NLRB found in the past not to be “employees” under the Act to petition for a union election.

On March 26, the NLRB Region 13 Director, Peter Sung Ohr, granted the players’ petition for a union election in a 26 page Decision and Direction of Election. Northwestern University has until April 9, 2014 to request a full review by the five member NLRB.

Common Sense Counsel: As traditional union representation continues to dwindle in the United States, the five-member Obama-stacked NLRB continues to seek ways to make itself relevant in a increasingly non-union society. This shocking decision by the Regional Director in Chicago is the latest example.

The new, expansive non-union workplace mission of the NLRB now touches: 1) Social media regulation; 2) internal investigation protections; 3) attacking employer prohibitions on the discussion of wages and benefits; 4) arbitration agreement challenges; 5) encouraging micro-unions; 6) allowing quickie ambush elections; and 7) now the destruction of college athletics.

Take time now to review your handbooks, agreements, internal protocols, and other policy guidance that may be subject to challenge by the NLRB's expansive mission and make changes so you will be able to field a team.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901.