It’s safe to assume that everyone reading this is generally familiar with the recent decision issued by a regional director of the National Labor Relations Board holding that Northwestern’s grant-in-aid scholarship football players are “employees” covered by the National Labor Relations Act. They therefore have the protected right to choose to be represented by a union, or not, in their uncoerced discretion.

If you’re in the habit of watching ESPN to get the news (as I am), you’ve heard a bevy of voices on the merits of that decision, from sports reporters, football coaches and NCAA administrators, all only too eager to voice their opinions on the matter.

Because I think that everyone in the NU community should have an understanding of the underlying basis of the decision, I decided to write this column. You’re all smart enough to know that this matter is not one governed by popular opinion or the subjective view of anyone. When CAPA filed its petition with the NLRB’s Chicago regional director, Peter Sung Ohr, the NU football players’ status under the NLRA became a legal question. That is how the director treated it in his decision. That decision, I should note, reflects expert, diligent legal research and reasoning, in my view, as a retired, career labor lawyer. (I was a prosecuting attorney with the NLRB for 37 years, after graduating from Northwestern School of Law. I no longer have any affiliation with either and speak for neither.)

Now, I want to explain the reasoning in that decision, removing the widespread confusion that surrounds it. The decision starts with a reciting of the legal test that controls whether someone is an “employee,” as “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.”

The director notes the benefits that accrue to NU that flow from the players’ services. He then identifies, as the contract between these two, the papers that constitute the offer and acceptance of grant-in-aid scholarships. Those papers state the benefits (i.e. legal consideration) to be provided to the players and conditions imposed upon the latter to qualify for receipt of those benefits (i.e. reciprocal legal consideration). Those conditions provide for expansive control by the school over the player in the work he will perform and the protocols governing his conduct. Looking further at the decision, the director found probative support for deeming the players to be employees in the hours of training, practice and game plan study that the players must devote to the football program on a weekly basis throughout and beyond the academic year. Those weekly hours range from 40 to 60, depending upon whether the time period involved is offseason or in season. The players thus often work on a weekly schedule having longer hours given to football than found in the typical work week of employees in society in general. That is consideration plus control. In return consideration, the players get a college education that is tuition free, with paid room, board, class books and any tutoring aid they may need to succeed academically.

There you have it.  You have the core of the decision in condensed form: an easy, pain-free dissection of a legal document. Now, you’ll be able to bedazzle friends from Illinois, Michigan or Wisconsin, et al., next time one of them tries to tell you that finding college football players are employees is just plain ridiculous. You can answer him, “Oh, yeah?  Are you saying that NU lacks sufficient right of control over the players or that a paid-for world class education at NU isn’t good legal consideration?” That will no doubt elicit the response, “Huh?”

David A. Nixon
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