NLRB Calls a Timeout in Northwestern Football Players Case

Last week, the National Labor Relations Board (NLRB) issued its long-awaited decision in Northwestern University, a case involving an attempt by scholarship football players to unionize under the National Labor Relations Act. About a year-and-a-half ago, in response to the university’s attempt to dismiss a union election petition filed on behalf of the players, a regional director decided that the students were statutory employees who could unionize. The university challenged the regional director’s decision, which set the stage for the Board’s decision.

In a somewhat anti-climatic fashion, the NLRB declined to decide whether the scholarship football players had the right to unionize, explaining that a ruling at this time would not promote stability in labor relations based upon the facts of the case. Accordingly, the Board left open the possibility that collegiate athletes could unionize and expressly reserved its right to decide that issue in a future case.

The NLRB’s decision turned primarily on the fact that Northwestern is the only private school in the Big Ten Conference and, therefore, the only school in the conference subject to the Board’s jurisdiction. Likening Big Ten football games to a final product manufactured for public consumption, the NLRB explained that the manufacturing process requires collaboration between all Big Ten football programs, which are subject to rules issued by both the National Collegiate Athletic Association (NCAA) and the Big Ten. The Board reasoned that were it to address “labor issues directly involving only an individual team and its players,” it would be impacting “the NCAA, the Big Ten, and other member institutions,” who are outside of its jurisdiction, and, therefore, create labor unrest. It is not hard to imagine the incredibly negative impact that a decision permitting the football players to unionize would have on the Big Ten, ranging from recruitment and retention of players to potential violations of Big Ten and NCAA rules regulating the treatment of athletes.

Importantly, the Board’s decision does not end the question as to whether college athletes can unionize. In light of the quickie election rules now in place, colleges and universities, in both the private and public sector, may want to consider the steps they should be taking now to insulate their student athletes from unionization. For questions about this blog, or unionization issues generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.