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In an unprecedented decision issued on Wednesday, the Regional Director for Region 13 of the National Labor Relations Board (NLRB) determined that college scholarship football players at Northwestern University are considered employees under the National Labor Relations Act (NLRA) and can unionize for collective bargaining purposes. The Regional Director applied the common law definition of an employee to determine if these student athletes were covered under the NLRA. Under that doctrine, a person who performs services for another under contract of hire in return for payment while being subject to the other's control or right of control is considered an employee. The Regional Director found that grant-in-aid scholarship football players perform services for the benefit of the school under a contract. They are also subject to the control of the school in the performance of their duties as football players. Consequently, they are "employees" and, thus, eligible for coverage of under the NLRA.

While the NLRA only applies to private employers, and not public institutions or universities, the ruling could still have a significant impact on college athletics. For example, football injuries could now arguably be considered compensable under state worker's compensation laws in light of the designation of student athletes as "employees." The University will likely appeal this ruling and it could take years before a final determination on this issue is reached. For now, private colleges and universities should be cognizant of the recent ruling and monitor all future action on the issue. As always, contact one of our attorneys if you have any questions.

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