Just how the dismissal of the petition to unionize some Northwestern University football players will affect other representation issues before the National Labor Relations Board (NLRB) is uncertain, but one issue the Board didn’t touch is whether scholarship football players should be considered employees.
The NLRB announced on August 17 that it had unanimously decided to dismiss the 2014 unionization petition because “asserting jurisdiction would not promote labor stability” because of the nature and structure of the National Collegiate Athletic Association’s (NCAA) Division I Football Bowl Subdivision (FBS).
Brian J. Kurtz, an attorney with FordHarrison LLP in Chicago, said the Board’s decision “sheds no light on whether these athletes are employees or not.” An NLRB regional director decided in March 2014 that the players receiving scholarships were “employees” under Section 2(3) of the National Labor Relations Act (NLRA). The Evanston, Illinois, university countered, claiming its athletes are “students, first and foremost” instead of employees.
By deciding not to exert jurisdiction, the NLRB “avoided the merits of the employee-versus-student analysis,” Kurtz said. He wasn’t surprised by the full Board’s decision. He said the surprising decision was the regional director’s initial decision in March 2014. He said the full Board’s decision “is more in line with people’s expectation.”
“I’m a little surprised (and encouraged) that it was a 5-0 decision and that all the Board members participated,” Kurtz said. As to the meaning of the new decision for employers in general, Kurtz said the issue in the Northwestern case was “limited and novel.”
“If anything, it is a step back from the direction the NLRB seems to be going, which is to expand its jurisdiction and to expand the definition of who employs workers,” Kurtz said.
“The Board made the right decision and applied practical considerations instead of elevating theory over reality,” Hasman said. “It is refreshing to see them do so.”
Although the case is important for Northwestern and other universities, it may not have a big impact on other employers, Hasman said. “This case was always unique and remains so.”
Kevin C. McCormick, an attorney with Whiteford, Taylor & Preston in Baltimore, Maryland, also said he wasn’t surprised by the decision since it’s the NCAA and conferences that are in control and the NLRB doesn’t have jurisdiction over public-sector schools. He also said the decision sidestepped the key question of whether scholarship athletes are employees.
Charles H. Kaplan, an attorney with Sills Cummis & Gross P.C. in New York City, pointed out that the regional director’s March 2014 decision was the first time the NLRB had ever asserted jurisdiction over college athletes.
“The Board has now pulled back from this radical position,” Kaplan said. “However, this retreat will not prevent the NLRB from soon likely overturning its 2004 Brown University decision and ruling that graduate student assistants in private colleges and universities are employees under the Act. Indeed, the Board expressly found that the Northwestern players ‘bear little resemblance’ to the Brown University graduate student assistants.”
Kaplan said the new Northwestern decision may not change the representation climate for employers in general. “Indeed, by declining to take radical action here, the NLRB gives itself cover for the aggressive prounion rulings that it has made and will continue to render with regard to employers in general,” he said.
In explaining its decision the NLRB cited its lack of jurisdiction over state-run colleges and universities, which make up 108 of the roughly 125 FBS teams. The Board also pointed out that Northwestern is the only school in its conference, the Big Ten, that isn’t a state-run institution.
“As the NCAA and conference maintain substantial control over individual teams, the Board held that asserting jurisdiction over a single team would not promote stability in labor relations across the league,” the NLRB statement said, adding that the decision “is narrowly focused to apply only to the players in this case and does not preclude reconsideration of the issue in the future.”
The effort sought representation by the College Athletes Players Association, which said it wanted to unionize the players to push for guaranteed coverage for sports-related medical expenses for current and former players, steps to minimize the risk of sports-related traumatic brain injuries, steps to improve graduation rates, increased athletic scholarships, opportunities for commercial sponsorships, and due-process rights so players aren’t punished just for being accused of a rule violation.
Northwestern praises decision
Northwestern University released a statement from Alan K. Cubbage, vice president for university relations, praising the NLRB decision. “As the University has stated previously, Northwestern considers its students who participate in NCAA Division I sports, including those who receive athletic scholarships, to be students, first and foremost. We applaud our players for bringing national attention to these important issues, but we believe strongly that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes. We are pleased that the NLRB has agreed with the University’s position.”
The issue began in January 2014 when Northwestern’s scholarship football players filed for a union election with the NLRB’s Region 13 office. Then in March 2014, the regional director issued a decision finding that the players were statutory employees under the NLRA and therefore eligible for unionization. He set a union election for April 25, 2014.
Northwestern then requested a review of the regional director’s decision from the NLRB, but the election was allowed to proceed. Because of the Board’s August 17 decision to dismiss the representation petition, those ballots won’t be counted, according to Northwestern’s statement.