Written by Anthony J. Holesworth

On September 21, 2013, Northwestern University’s starting quarterback at the time, Kain Colter, wore a wristband with the letters “A.P.U” (All Players United) during a game. This simple act was the seminal event in what has become the highly publicized effort to unionize Northwestern’s scholarship football players.

For years, many considered it a phenomenal deal to receive a full scholarship to play sports in college. Most high school athletes simply do not possess the requisite talent and skill to play sports at that level. Thus, the lucky ones who get those opportunities are widely regarded as a fortunate bunch. While most of these student-athletes seem to cherish their opportunities and consider themselves fortunate, Colter thinks they are getting a raw deal and are being exploited by the National Collegiate Athletic Association (NCAA). “Right now the NCAA is like a dictatorship,” Colter said on ESPN’s Outside the Lines, “No one represents us in negotiations. The only way things are going to change is if players have a union.”

“Right now the NCAA is like a dictatorship,” Colter said on ESPN’s Outside the Lines, “No one represents us in negotiations. The only way things are going to change is if players have a union.”

Accordingly, in January 2014, Colter joined forces with former college athletes Ramogi Huma and Luke Bonner to form the College Athletes Players Association (CAPA), an organization devoted to increasing college athletes’ bargaining power with respect to the terms and conditions of their participation on athletic teams.

Upon its founding, CAPA filed a petition with the National Labor Relations Board (NLRB), claiming that the student-athletes receiving scholarships on the Northwestern University football team are actually employees and, therefore, they have the right to collectively bargain with the University. CAPA claims the players are employees because they are subject to control and commit many hours to football-related activities, in exchange for scholarship payments. Colter clarified CAPA’s position: “The action we’re taking isn’t because of any mistreatment by Northwestern. We love Northwestern. The school is just playing by the rules of their governing body, the NCAA.”

Northwestern, as the alleged employer in this case, contends that its student-athletes are students, first and foremost, and should not be legally considered employees. The school argues the student-athletes receiving scholarships are most similar to graduate students, who have consistently been legally regarded as students, rather than employees.

In an unprecedented decision, NLRB Regional Director Ohr determined that the football players receiving scholarships are employees of Northwestern University, rather than student-athletes, because they commit a significant number of hours to the sport, they are compensated (in the form of scholarships), and the football program exerts a high level of control over them through restrictive policies. The ruling is under review by the full NLRB, and may thereafter be appealed to federal court. But Ohr’s decision enabled the scholarship players on the football team to vote on whether they even want to unionize and be represented by CAPA.

Before the vote was cast, Northwestern’s head football coach, Pat Fitzgerald, took it upon himself to help the student-athletes on his team make the most informed decision possible. Said Fitzgerald, “I believe it’s in their best interests to vote no. With the research that I’ve done, I’m going to stick to the facts and I’m going to do everything in my power to educate our guys.” He elaborated, saying, “We have to educate [the student-athletes] to help them understand the whole aspect of what this decision is. That’s what their parents entrusted us to do . . . and we’ll continue to work with them to do that.”

. . . this all begs the question: should these student-athletes be considered students or employees?

Fitzgerald’s words did not fall on deaf ears, as his starting quarterback, Trevor Siemian, said, “I think at this university I’m really fortunate to be in the position I’m in. I don’t think union is the answer for my team, or my university . . . I’ve been treated unbelievably, far exceeding my expectations.”

The vote was cast and the results impounded, pending the review by the full NLRB in Washington D.C. Although the results are unknown, the expectation seems to be that the players voted against unionization. Still, though, regardless of whether the players voted for or against the union, the vote itself will be irrelevant if the full NLRB finds the student-athletes are students, rather than employees.

In the meantime, this all begs the question: should these student-athletes be considered students or employees? Common sense and precedent say they are students.

While the National Labor Relations Act (NLRA), the statute that governs employment relationships, simply states that “the term ‘employee’ shall include any employee,” the Supreme Court in NLRB v. Town & Country Electric established a more specific definition of employee: “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.” Being subject to control does not, on its own, constitute employee status, and the word “payment” has been construed to mean compensation based on the skill or function involved in the work being done, rather than merely the transfer of money from one party to another.

Because the NLRB carries out and enforces the NLRA, its decisions are relevant to understand what constitutes an employee under the Act. Since 1972, the NLRB has consistently held that individuals enrolled at universities are not employees (one aberrant decision found graduate assistants to be employees, but it was expressly overruled).

In The Leland Stanford Junior University (Stanford), the NLRB determined that the payments graduate research assistants (RAs) received were not wages and held that those students were thus not “employees” under the NLRA. The Board in Stanford considered whether the payment is based on the skill and work performed or is simply based on the cost of attendance. Thus, recipients of scholarship payments based on the cost of attendance are not employees of the institutions giving the scholarships.

In 2004, the NLRB in Brown University & International Union (Brown) reaffirmed the Stanford holding that students enrolled in universities are not employees, reasoning that the academic enrollment prerequisite for graduate assistantship was evidence that the individuals were, in fact, students. The NLRB also addressed a significant policy concern, stating: “Imposing collective bargaining would have a deleterious impact on overall educational decisions by the Brown faculty and administration.”

Similar to the students in Brown, the scholarship athletes on Northwestern University’s football team enrolled as students as a prerequisite to their participation on the football team.  Although they receive scholarships and commit a great number of hours to football, they are students first and foremost, and their scholarship money is not consideration for work, but is merely financial aid to attend the school. Thus, they are students and should continue to be legally recognized as such.

Northwestern’s student-athletes must be enrolled as students and must maintain a minimum grade point average or they will be suspended from the team until their grades improve. The school’s steadfast commitment to maintaining academics as its central priority is further evidenced by the student-athletes’ performance in the classroom. The scholarship football players have a cumulative grade point average of 3.024 and a graduation rate of 97%, which ranks first in the country among college football teams. The players also have about 20 different majors, and some go on to medical school, law school, and careers in engineering after receiving their undergraduate degrees.

If education has taken a backseat to college sports participation, Northwestern University is certainly not a place where that has happened. In fact, the above statistics show that Northwestern is the least likely school to compromise its academics in favor of its football program. If anything, Northwestern University sets the example for education being a foremost priority at colleges with football programs.

Granting employee status to Northwestern’s scholarship football players would be a step toward universities ceasing to exist as educational institutions. The idea that people should allow the “student” in “student-athlete” to be legally relegated to a secondary role is a frightening notion, as it threatens the integrity and effectiveness of educational institutions. At some schools, this relegation may already be taking shape on its own, without the force of the law. But rather than allowing this shameful phenomenon to set the standard for the future, this moment in time should serve as a wakeup call that higher education is in jeopardy. Let Northwestern University’s current litigation serve as a guiding light, a turning point for student-athletes and institutions everywhere to reexamine and realign their commitments to education.