United States: A Primer On The Northwestern-NLRB Decision And Its Effects

Last Updated: April 25 2014
Article by Richard Brand, Maidie E. Oliveau and Collin Seals

It is unlikely that any ruling by a Regional Director of the National Labor Relations Board (NLRB) has ever sparked such nationwide commentary as that of Region 13 Regional Director Peter Sung Ohr in ruling that Northwestern University scholarship football players are "employees" of the University, a decision discussed in Arent Fox's alert on March 26, 2014 (available here). While this decision is certainly groundbreaking and controversial, it is also widely misunderstood, both on its own terms and in its likely effects. Accordingly, we have prepared this alert to clear up some common misconceptions about the Northwestern NLRB decision.

Doesn't this decision mean that we now have to pay athletes?

Perhaps the most common misconception — one which even made its way into the official statement the NCAA issued in the wake of the decision — is also the most easily dispelled. The Regional Director's decision was not about paying athletes, because it was based on the assumption that the scholarship athletes are already being paid. Specifically, they receive "grant-in-aid" scholarships in return for playing football. Indeed, the first substantive portion of the ruling is entitled "Grant-in-Aid Scholarship Football Players Perform Services for the Benefit of the Employer for Which They Receive Compensation," in which the Regional Director found that the value of the scholarships "totals as much as $76,000 per calendar year," and that the scholarships "are in exchange for the athletic services being performed." This is also why the Regional Director rejected Northwestern's argument that the proposed bargaining unit was inappropriate because it did not include non-scholarship, walk-on players: because non-scholarship, walk-on players do not receive money to play football, and therefore cannot be considered employees.

But it's eventually going to lead to paying athletes, right?

The Regional Director's decision has one and only one immediate effect: it allows Northwestern football players receiving grant-in-aid scholarships to vote on whether they wish to form a union to represent them in collective bargaining with Northwestern University. That vote is scheduled for April 25, 2014. If the NLRB does not issue a stay pending Northwestern's request for review of the Regional Director's ruling, then the election will proceed and the ballots will be impounded until the Board rules. If ultimately a union does get elected, then it will engage in collective bargaining with Northwestern with the goal of negotiating a collective bargaining agreement (CBA) governing the relationship between the athletes and the University.

"If college scholarship athletes are ever going to be paid more than the amount currently allowed by the NCAA, it will first require significant changes by the NCAA itself, and not through a collective bargaining process between a union and Northwestern University."

In negotiating a CBA, the union and the University will be cognizant of the requirements of both the National Collegiate Athletic Association (NCAA) and the Big Ten Conference (BTC). Unless the bylaws of those governing organizations change dramatically, the union will likely not even ask for direct payment over and above the amount of the grant-in-aid scholarship. For instance, in the unlikely event that a union did ask for — and was able to obtain — some form of payment over and above the "cost of attendance," each athlete receiving any such payment would be rendered ineligible to play under NCAA Bylaws § 15.01.2. Moreover, in agreeing to such payments, the University could be subject to sanctions under Article 19 of the NCAA Bylaws. Such discipline could come at a steep price: the Regional Director noted that in the 2012–2013 academic year, the Northwestern football team generated $30.1 million in revenue for the University, against $21.7 million in expenses. Unless and until the NCAA changes its position, any CBA would have to work within the existing rules. Of the 11 stated goals of the College Athletes Players Association (CAPA) — the petitioning union in the Northwestern case — only two are monetarily related, and both would necessarily require NCAA action rather than Northwestern's agreement alone. The first of these is a call to the NCAA to raise the ceiling on what constitutes a "full scholarship," and the second is to eliminate the NCAA's restrictions on what CAPA terms "legitimate employment."

CAPA's other stated goals — which could potentially be included in a CBA without NCAA repercussions – include prohibiting a university from using a permanent injury suffered during athletics as a reason to reduce or eliminate a scholarship, and prohibiting the coaches from refusing to grant a release to a player who wishes to transfer (players that transfer without a release cannot play or receive an athletic scholarship for an entire year, and refusing to grant a release is a common practice).

If college scholarship athletes are ever going to be paid more than the amount currently allowed by the NCAA, it will first require significant changes by the NCAA itself, and not through a collective bargaining process between a union and Northwestern University.

Does this decision mean that all college athletes are employees and can unionize?

Put simply — no. Even under an expansive reading of the Northwestern decision, it potentially applies only to:

  1. NCAA Football Bowl Subdivision (FBS) football players, who are...
  2. Receiving scholarship money for their athletic prowess, and are enrolled in...
  3. Private institutions.

The last point is critical, as state employees are exempt from the National Labor Relations Act (NLRA) with respect to unionization, although many states have their own laws on unionization of state employees. Currently, only 17 private universities participate in NCAA FBS football. The vast majority of FBS football programs would be unaffected by any potential ramifications of this ruling, except perhaps to the extent they chose to be.

Additionally, the Regional Director's analysis only begins with the assumption that football scholarships are wages. The second part of the analysis is the degree to which Northwestern University exercises its control over the scholarship football players. It is possible that another university may not exercise the same level of control over its football players' daily lives as did Northwestern. However, it is significantly more likely that universities do not so strictly control the lives of athletes in other sports. In any event, because institutional control is a significant part of the analysis, the question of whether a particular athlete in qualifies as an "employee" requires a case-by-case (or sport-by-sport) determination.

Shouldn't it be enough that they get a free education in exchange for playing a game?

This was another misconception that found its way into the NCAA's official response. However, the "control" exhibited by Northwestern for the purposes of the second part of the "employee" analysis included examples of how Northwestern may have prevented athletes from gaining an education — or, at least, in the opinion of the Regional Director, may have prevented them from getting the education they wanted. As noted in the Northwestern decision, "[w]hile the football coaches ... appear to value the players' academic education, it is clear that the players are controlled to such a degree that it does impact their academic pursuits to a certain extent." The impact includes the inability to take certain courses and the forced missing of classes. Moreover, in its defense, Northwestern only provided one instance where Coach Pat Fitzgerald accommodated a scholarship player's academic work by permitting him to miss practice and one game.

Many responses to the Northwestern decision have been emotional, and understandably so. College athletics — particularly college football — play an integral part in the day to day lives of many Americans. However, emotional reactions cannot change the reality that the decision was based on specific facts, assumptions, legal theories and analyses. Whether these assumptions and theories will be upheld as the process unfolds will remain to be seen.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.