Northwestern announces grounds for NLRB appeal

Two weeks after the National Labor Relation Board’s regional director in Chicago ruled that Northwestern football players are legally employees, the university sent in a request for appeal to the NLRB’s board in Washington, D.C. The union, the College Athletes Players Association (CAPA), has a week to file an opposition to the appeal, after which the national board will decide whether the case should be reviewed.

Northwestern announced immediately after the decision that it would appeal the ruling, but today’s official brief outlined the main arguments of the university, focusing mostly on the principle that the football players are primarily students. These two arguments got the most attention in the appeal:

1) The only semi-related precedent there was for this case was a case in which teaching assistants at Brown University were not deemed employees, because their relationship with the university was primarily educational. In his decision, regional director Peter Sung Ohr noted that athletes fell further outside the academic realm, and that they have a primarily economic relationship with the university.

Essentially, Ohr decided that athletes are given their scholarships more to play football for than they are to attend school, since they are given out by the football coach, Pat Fitzgerald. He also equated the scholarship tender signed by athletes to a contract. Northwestern disagreed, calling it an “award letter.”

2) Northwestern’s argument throughout the hearing was that the student-athlete experience is all-encompassing. However, Ohr and CAPA both noted that football players are subject to different rules than other students, which distances them from the regular student body. Fitzgerald has the power to remove players scholarships, meaning he is similar to a boss.

Northwestern wrote in its appeal that the rules governing athletes and regular students are very similar, meaning athletes are primarily students. They also noted that Fitzgerald very rarely pulls scholarships, though this argument won’t hold much legal weight, since all that matters is that he has the ability to do it if he wants. As CAPA and Ohr both argued, being a good boss still makes you a boss.

Most legal experts expect this to be an uphill battle for the university. The national board is considered to be more union-friendly than the one that wrote the Brown University decision, and it must place at least some weight on Ohr’s decision.

The more likely way for Northwestern to avoid unionization is for the university to encourage its players to vote against forming a union. The vote will take place on April 25, though the votes will probably be impounded until after the appeals process is over. It’s important to note that the athletes are not voting on whether they’re employees — that will be decided by the NLRB — so the decision from the national board is still important in determining whether college football players should be considered employees or student-athletes.