Employees or Not? Graduate-Student Assistants Versus Scholarship Athletes

March 27, 2014

The National Labor Relations Board’s ruling on Wednesday spelled out how Northwestern University’s scholarship football players are different from graduate-student assistants when determining whether or not those groups should be considered employees with the right to organize. In a 2004 decision involving Brown University, the National Labor Relations Board held that graduate-student assistants who performed services in connection with their studies were not employees. In the Northwestern case, a regional office of the board ruled that the athletes are employees of the university and deserve the right to organize.

Following are the questions that the Northwestern ruling uses to differentiate scholarship athletes from graduate-student assistants:

Are they "primarily students"?

Graduate students: Yes. The board held in its 2004 decision that "students serving as graduate-student assistants spend only a limited number of hours performing their duties, and it is beyond dispute that their principal time commitment at Brown is focused on obtaining a degree and, thus, being a student."

Scholarship athletes: No. Wednesday’s ruling found that it cannot be said that the players "spend only a limited number of hours performing their athletic duties." Players spend 50 to 60 hours per week on their football duties during a one-month training camp before the start of the academic year, the ruling says, and 40 to 50 hours per week on those duties during the three- or four-month football season. "Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies," the ruling says.

Is their relationship with their university an academic one or an economic one?

Graduate students: Academic. Graduate assistants received academic credit for performing their duties, the board found in 2004. And, for a substantial majority of those assistants, their duties also were a requirement for their degree. Because their duties were directly related to their educational requirements, the board deemed their relationship with the university to be an academic one, not an economic one.

Scholarship athletes: Economic. Scholarship players do not receive any academic credit for playing football, the ruling notes, and the players are also not required to play football in order to obtain their undergraduate degree. "The fact that the players undoubtedly learn great life lessons from participating on the football team and take with them important values such as character, dedication, perseverance, and teamwork, is insufficient to show that their relationship with the employer is primarily an academic one," the ruling says. This relationship is an economic one, the ruling concludes, that involves the transfer of great sums of money to the players in the form of scholarships.

Do academic faculty members oversee the duties for which they are paid?

Graduate students: Yes. The board found in 2004 that graduate assistants’ duties were a part of their education because the work was typically performed under the direction and control of faculty members in those students’ academic departments. Those same faculty members were responsible for teaching the students, the board noted, and assisting them in the preparation of their dissertations.

Scholarship athletes: No. Academic faculty members do not oversee the athletic duties that the players perform. Instead, football coaches, who are not members of the academic faculty, are responsible for supervising the players’ athletic duties. "This critical distinction certainly lessens any concern that imposing collective bargaining would have a ‘deleterious impact on overall educational decisions’ by the employer’s academic faculty," the ruling says. And, it concludes, "the players’ lack of a relationship with the faculty when performing their athletic duties militates against a finding that they are merely students."

Is their compensation the equivalent of pay for services performed or financial aid to attend the university?

Graduate students: Financial aid to attend the university. The board noted two factors in ruling in 2004 that graduate assistants’ compensation was not pay for services performed. Graduate assistants, the board said, received the same compensation as the graduate fellows of whom no teaching or research was required. Graduate assistants’ compensation also was not tied to the quality of their work, the board said.

Scholarship athletes: Pay for services performed. The university never offers scholarships to prospective students unless they intend to provide an athletic service to the university, the ruling notes. In fact, it says, the players can have their scholarships immediately canceled if they voluntarily withdraw from the football team. Even players who are not starters and do not play in any games must attend all of the practices, workouts, and meetings as a condition of retaining their scholarships.