NLRB Rules That Northwestern University Football Players are Employees: Now what?

Posted by Kenneth N. Winkler on

The National Labor Relations Board in Chicago has ruled that football players at Northwestern University who receive scholarships are employees within the meaning of the National Labor Relations Act and, therefore, have the right to union representation.  More specifically, the Regional Director, Peter Ohr, held that the football players were employees because scholarship players perform football-related services for the benefit of the University under a contract for hire in return for compensation.  The Regional Director has ordered that an election be conducted to determine whether all football players receiving football grant-in-aid scholarship choose to unionized.

Northwestern has stated that it will appeal the decision to the full NLRB in Washington, D.C.

What can you expect to happen to college football?  Critics claim that giving students employee status and allowing them to unionize will hurt college athletics by increasing the potential of strikes, lockouts and other turmoil.  If students are ultimately determined to be employees and entitled to union representation, the ramifications and implications seem endless and uncertain.  I suspect that “regular” workplace issues will make their way into college sports.

Despite a plethora of complex problems that exist with the current NCAA system, union representation may not be the appropriate or best solution.   The fictional scenario below that deals with an on-the-field performance problem may be an indication of what is to come if the NLRB decision prevails.

FINAL WRITTEN WARNING

Joe: This Final Written Warning is being issued due to your performance deficiencies as Place Kicker.  More specifically, last Saturday evening you failed to convert a 35-yard field goal attempt.   As a result, our team lost a critical game against our biggest conference rival.  The loss also jeopardizes our chances of being bowl eligible. A film clip showing the miss (wide left) is enclosed for your records. To make a bad situation worse, the game was aired on national television, which brought unwanted media attention to our program.  I would be remiss if I did not also state that two of the university’s most sought after high school prospects were present at the game.  They appeared visibly upset about the loss and one even commented that “kickers are not even football players – I wish they would just get rid of them” or words to that effect. As you know, we have met on several prior occasions to discuss our concerns regarding your lack of reliability, especially in pressure situations.   Despite our efforts to help you improve, you continue to miss field goals from reasonable distances.  In addition to several missed field goals, you have failed to consistently kick the ball into the end zone on kickoffs.  Your performance is clearly not acceptable. Our expectations are that you immediately improve your performance.  Please appreciate that if you (1) fail to convert another field goal of 35-yards or less; (2) fail to convert all extra points; or (3) do not improve your kick-offs during the remaining season, your employment will be terminated and your scholarship will not be renewed.  Of course, your union steward will be permitted to attend any meeting that may lead to or result in termination of your employment. We trust that you recognize the seriousness of this matter and take the necessary steps to improve your on-the-field performance.  We do recognize your classroom success (3.75 GPA), which is being taken into consideration.   Please sign below acknowledging your receipt and acceptance of this Final Written Warning. Coach

RESPONSE TO FINAL WRITTEN WARNING

Coach:   I am in receipt of the Final Written Warning.  Enclosed please find a letter from my treating physician placing me on a 5 day leave of absence.  The letter also confirms that I am suffering from anxiety and Post Traumatic Stress Disorder (“PTSD”). As you know, I made you aware of my anxiousness during spring practice.  You told me to toughen up or join the women’s softball team.   Most recently, during a post game speech, you humiliated me in front of other teammates, singled me for the loss, and declared that “&^%, my daughter’s two guppies have more mental toughness than you.”  I recorded the statement on my iPhone. My tutor told me that my PTSD and anxiety constitute disabilities under the Americans with Disabilities Act (“ADA”).  Because you knew of my condition and failed to help me, I believe that the university has violated the ADA.  I should not have been disciplined for performance problems that you knew were caused because of my disability and which the team failed to provide a reasonable accommodation. Based on the foregoing, I refuse to sign the Final Written Warning.  This letter also serves as my written Grievance under Step One of the Grievance Process. I seek the removal of the Final Written Warning from my personnel folder.  As part of my Grievance, I also seek modification of the Team’s social media policy, because I believe it is too broad and interferes with my right to discuss workplace issues with my fellow union members.  Similarly, your inspection of my Facebook profile and online postings constitutes unlawful surveillance under the NLRA.   I am also concerned that I have not been properly compensated for the time that I spent donning and doffing my shoulder pads, helmet and other protective gear at practice and games.  The Collective Bargaining Agreement is silent as to this issue.  I am still investigating my rights under the Fair Labor Standards Act (“FLSA”).  Thus, I reserve all rights to amend my Grievance if my rights under the FLSA have been violated. Please respond to the Grievance within 5 business days as required under the Grievance Process. See you at next week’s practice, provided I am released without restrictions. Joe