By:  Joshua M. Henderson, Esq.

That is the question of the moment, it seems, as last week’s representation petition filed by Northwestern University football players–seeking to be represented by the College Athletes Players Association–has generated considerable public interest. (Northwestern RC petition)  No doubt it also has created some consternation among private university officials.  (Recall that the National Labor Relations Act excludes public employers from its scope). Are we now faced with the possibility that the football Wildcats will engage in these wildcats?

It is certainly an interesting issue. The University likely will argue that college student-athletes are just that: students and athletes, but not statutory employees.  Their primary relationship with the university is not an economic one.  The union, conversely, will argue that they are primarily revenue generating employees of the university who deserve the right to unionize.

The NLRB’s Regional office handling this petition will decide, in the first instance, whether  these players are, in fact, “employees” within the meaning of the Act, based on the evidence and arguments presented in the  representation hearing currently scheduled for February 7th. The Region’s decision, however, will obviously not be the final word on this issue, as it will most certainly be reviewed by the NLRB and eventually the courts.

As we know, the Board has not been timid when it comes to “pushing the envelope” with respect to its authority and the reach of the Act. Examples abound.  For example, the Board also has been considering a return to allowing college graduate student assistants to unionize.

Still, even if “wages” presumably would not be subject to negotiation for these amateur athletes, the disruptive effect of allowing college student-athletes to organize and form a labor union—where, in the words of a 1960 Supreme Court decision “`parties . . . proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest’”—should give the Board pause.