Outkicking the Coverage: The Unionization of
Few industries have experienced the growth that college football has
sustained in recent decades.1 The athletes are bigger, the stadiums are
cathedrals, and revenues of major college football programs have soared
to unprecedented heights.2 This surge in popularity has induced substantial
changes to the sport and has given rise to numerous issues that must be
addressed if college football is to maintain its meteoric rise.3 The evolving
role of student-athletes has created questions regarding how these
individuals fit into the modern landscape of college football; in particular,
the issue has arisen regarding whether athletes may be considered
employees for the purposes of federal labor law. Recently, a group of
scholarship football players at Northwestern University attempted to
answer this question.4
In January 2014, the College Athletic Players Association (“CAPA”)
petitioned the National Labor Relations Board (the “NLRB”) to represent
a collective bargaining unit consisting of scholarship football players at
Northwestern University.5 In doing so, the athletes presented a novel
question: are college athletes considered employees for purposes of federal
labor law standards? If so, then these athletes are entitled to the rights
prescribed to all employees under the National Labor Relations Act
(“NLRA”), including the right to unionize and collectively bargain; if they
are not employees, then they are excluded from coverage under the Act
and are not entitled to any of the rights granted therein. Ultimately, the
Copyright 2016, by TIM ROBINSON.
1. See Eric Chemi, The Amazing Growth in College Football Revenues,
BLOOMBERG BUSINESS (Sept. 27, 2013, 12:42 PM), http://www.bloomberg.com/bw/
2. See id.
3. See Kieran McCauley, College Athletes Shouldn’t Be Paid, DAILY LOCAL
NEWS (Apr. 28, 2015), http://www.dailylocal.com/article/DL/20150428/SPORTS
4. Tom Farrey, Kain Colter Starts Union Movement, ESPN (Jan. 28, 2014),
586 LOUISIANA LAW REVIEW [Vol. 77
NLRB eluded the question for policy reasons.6 However, the question
remains—what is the status of college athletes under federal labor law?
This Comment attempts to predict the outcome of this important issue.
Part I provides background on the administrative domain that will
determine the status of college athletes. Discussing factors relevant to this
determination, Part II explains the National Labor Relations Board’s prior
decisions involving college students—specifically, graduate students
performing teaching and research duties in return for some form of
financial aid. Part III presents the recent petition filed by the Northwestern
University scholarship football players and analyzes both the regional
director’s original decision and the most recent decision issued by the
National Labor Relations Board in August 2015. Finally, Part IV offers a
two-pronged solution in which the NLRB would recognize scholarship
college athletes as employees under the NLRA and subsequently establish
a separate class of employees that retains certain rights under the Act but
is restricted from collective bargaining.
I. THE NATIONAL LABOR RELATIONS ACT
Congress enacted the National Labor Relations Act7 on July 5, 1935,
marking the beginning of modern federal regulation of labor relations. The
NLRA embodies the national labor policy of the United States and
provides the framework by which employers and employees interact, in
the context of both union and non-union activity.
A. Background and Purpose of the Act
The primary function of the Act was to promote peace between labor
and management.8 In response to instability arising from employers’
unwillingness to recognize certain rights of employees, Congress sought
6. Ben Strauss, N.L.R.B. Rejects Northwestern Football Players’ Union Bid, N.Y.
TIMES (Aug. 17, 2015), http://www.nytimes.com/2015/08/18/sports/ncaafootball/nlrb-
7. National Labor Relations Act, 29 U.S.C. §§ 151–169 (2012).
8. See 1 THE DEVELOPING LABOR LAW: THE BOARD, THE COURTS, AND THE
NATIONAL LABOR RELATIONS ACT 27–28 (John E. Higgins, Jr. et al. eds., 6th ed.
2012) [hereinafter THE DEVELOPING LABOR LAW]. There is some discussion
among commentators that the purpose of pro moting industrial peace has been
overstated by the Board and that the Act was actually meant to act as a weapon
against the Great Depression. See, e.g., Kenneth Casebeer, Holder of the Pen: An
Interview with Leon Keyserling on Drafting the Wagner Act, 42 U. MIAMI L. REV.
285, 320–22 (1987).
2016] COMMENT 587
to protect those rights by encouraging collective bargaining, and, further,
to curtail certain private sector labor and management practices that were
harmful to the national economy.9
Relevant sections of the NLRA define and protect the rights of employers
and employees. Section 2 provides definitions for the entire Act, including
“employer” and “employee.”10 Section 7 expressly lists employee rights that
are protected by the Act, and section 8 safeguards these rights by prohibiting
“unfair labor practices” by employers.11 Finally, section 9 creates the process
by which the National Labor Relations Board conducts representation
proceedings.12 Any inquiry into the status of college athletes necessarily
begins with an analysis of these sections of the NLRA.
B. Section 2(3): Employees
The NLRA defines “employee” broadly in section 2(3), declaring,
“the term ‘employee’ shall include any employee, and shall not be limited
to the employees of a particular employer, unless this subchapter explicitly
states otherwise.”13 The Board generally finds little difficulty in applying
the broad definition found in section 2(3).14 With few exceptions, if an
individual is not in an excluded category of employees and works for an
employer, the Board will assume that the individual is covered by the
The NLRA originally did not plainly exclude independent contractors
from coverage. However, as amended by the 1947 Labor Management
Relations Act (the “Taft-Hartley Act”), section 2(3) provides that the term
“employee” shall not include “any individual having the status of an
independent contractor.”16 The Supreme Court has found that Congress’s
purpose for excluding independent contractors was to have the Board and
9. OFFICE OF GEN. COUNSEL, NAT’L LAB OR RELATIONS BD., BASIC GUIDE
TO THE NATIONAL LABOR RELATIONS ACT 1 (1997).
10. 29 U.S.C. § 152 (2012).
11. Id. §§ 157–158.
12. Id. § 159.
13. Id. § 152(3).
14. Id. § 152(3) (citing as exceptions to the definition of “employee” (1)
agricultural laborers; (2 ) laborers in domestic service of any family or person at
his home; (3) individuals employed by his parent or spouse; (4) independent
contractors; (5) supervisor; (6) individuals employed by employers subject to the
Railway Labor Act; and (7) any individual employed b y any other person who is
not an employer as defined by the Act).
15. THE DEVELOPING LABOR LAW, supra note 8, at 2836.
16. 29 U.S.C. § 152(3).