The College Athletes Players Association petitioned the National Labor Relations Board (NLRB) contending that football players at Northwestern University who receive "grant-in-aid" scholarships are "employees" under section 2(3) of the National Labor Relations Act, entitling them to choose whether or not to be represented by a union for the purpose of collective bargaining. The NLRB used the common law definition of an employee-a person who performs services for another under a contract of hire, subject to the other's control or right of control, and in return for payment. It looked at various facts to determine whether the grant-in-aid students met the definition of employees.

First, the scholarship recipients generate football revenue through ticket sales, television contracts, merchandise sales, and licensing agreements (for the 2012-2013 academic year, the football program generated $30.1 million in revenue, with corresponding expenses of approximately $21 million). Second, the players receive scholarships for the services they perform (scholarships can approach $76,000 per year). The players must also sign a "tender" before each scholarship period, which describes the terms and conditions of the offer. Third, the activities of the players are controlled by the university. For example, during football season, the university dictates what clothing the players must wear to home games and while traveling to away games. Players spend fifty to sixty hours a week on football duties during preseason training camp and about forty to fifty hours a week on football duties during the season. The players are subject to rules that nonscholarship students do not have to follow, including rules about living arrangements, getting a job, driving a car, postings on social media sites, using alcohol and drugs, speaking to the press, and swearing in public.
Are the football players at Northwestern who receive "grant-in-aid" scholarships "employees" entitled to choose whether or not to be represented by a union for the purpose of collective bargaining?