Let me start this second half by saying that the author of this decision, Regional Director Peter Ohr, is a law school classmate of mine for whom I have tremendous respect. That said, I think the Region made a mistake in directing an election in this case and it is my hope that Northwestern appeals the decision and that the Board overrules the Direction of Election.

However, I strongly doubt this will happen given the Board's recent efforts to expand it relevancy. My first problem with the decision is that I think the analysis obscures the fact that scholarship players, like the walk-ons and graduate assistants, are primarily students. For the vast majority of the players, the scholarship is simply a means to finance their educations and hopefully to enjoy a sport they love. The vast majority will never make professional football their livelihood and do not enter college expecting to become a professional athlete. That their scholarship could be revoked if they voluntarily quit the team should not be critical in the analysis. What would happen to a graduate assistant who received tuition and a stipend where research or teaching was tied to the scholarship? They too would likely lose the scholarship unless it was a needs based scholarship. Nor should the fact that the players devote a significant portion of their time in football-related services. The only reason they are eligible to play football is because they are enrolled at the school. If the player quits the school they also forfeit their scholarship and cannot play for the school irrespective of their willingness to do so. Thus, these players are not employees in the ordinary sense of the word.

My second reason for disagreeing with the Region's Direction of Election is that concluding that the scholarship players are primarily employees entitled to organize will almost surely cripple college sports. Not just Northwestern football or NCAA Division 1A football, but all NCAA Division 1 programs that provide athletic scholarships as the schools may soon be obligated to bargain with their scholarship players over the terms and conditions of their alleged "employment" in the scholarship sport. Eventually, the players will demand more lucrative compensation for their services—not just tuition, room and board. Should this happen, universities will have less money to fund other sports that are not revenue generators. This will likely result in schools fielding fewer varsity sports as the cost of fielding as many teams in the past will be prohibitive, particularly if the Board concludes that athletic scholarship players in non-revenue generating sports are also employees entitled to organize. The Region's current decision if allowed to stand may also cause serious problems with Title IX absent the schools simply giving up athletic scholarships. Beyond, the impact on college sports, will the Region's decision ultimately result in the schools having to bargain with their players over the players academic lives. For instance, will hours required for a degree, grading, and course requirements also be subject to bargaining with the university? Clearly to the extent these players are also students and their employer is the school, why wouldn't this be a required subject of bargaining?

I think the Board would be better off declining to assert jurisdiction and ordering an election in this instance.

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