On August 17, 2015, nearly seventeen months after a National Labor Relations Board (“NLRB”) Regional Director ruled that Northwestern grant-in-aid scholarship football players were considered employees under the National Labor Relations Act (“NLRA”), the NLRB unanimously changed course and declined to exert jurisdiction over the athletes’ petition, thereby reversing the lower decision. In Northwestern University, 362 NLRB 167 (Aug. 17, 2015), the NLRB stated that exerting jurisdiction “would not effectuate the policies of the Act” or “promote stability in labor relations.” 362 NRLB 167, at 1, 3. Further, the NLRB explicitly declined to determine the highly publicized issue of whether scholarship athletes are considered employees within the meaning of Section 2(3) of the NLRA; instead choosing to focus solely on the contents and effects of the Northwestern athletes’ petition.
In January of 2014, Northwestern grant-in-aid scholarship football players filed a representation election petition with the NLRB to be represented by the College Athletes Players Association for the purpose of collective bargaining. The athletes contended that their $61,000 grant-in-aid scholarship amounted to pay-for-performance as football players. On March 26, 2014, the NLRB’s Chicago Regional Director deemed the scholarship athletes to be employees under the NLRA, allowing them the opportunity to unionize through a NLRB election. The Regional Director determined that the scholarships amounted to compensation for playing football at Northwestern, and also noted the strict standards imposed upon the student athletes. However, on April 24, 2014, the NLRB granted Northwestern University’s request to review the Regional Director’s decision and impounded the unionization ballots the day before they were to be counted.
The NLRB premised its determination to decline jurisdiction on the “nature of sports leagues (namely the control exercised by leagues over the individual teams) and the composition and structure of FBS football (in which the overwhelming majority of competitors are public colleges and universities over which the board cannot assert jurisdiction).” Id. at 3. The Football Bowl Subdivision (FBS) is made up of 125 colleges and universities, all but 17 of which are public institutions. Further, Northwestern is the only private institution in the Big Ten conference, meaning the Board has no jurisdiction over Northwestern’s primary competitors. The Board concluded that determining labor issues directly involving only one team would subsequently destabilize the “symbiotic relationship among the various teams, the conferences, and the NCAA,” and would not promote the NLRA’s goals of uniformity and stability between workers and management. Id. at 4.
While the NLRB clearly and repeatedly states that it is not determining whether scholarship athletes should be considered employees, the decision does indicate that “scholarship players do not fit into any analytical framework that the Board has used in cases involving other types students or athletes.” Id. at 3. In 2004, the NLRB found that graduate student assistants are not considered statutory employees under the Act. Brown University, 342 NLRB 483 (2004). Specifically addressing Brown University, the NLRB elaborated that “scholarship players bear little resemblance to the graduate student assistants” and “the fact that the scholarship players are students who are also athletes receiving a scholarship to participate in what has traditionally been regarded as an extracurricular activity . . . materially sets them apart from the Board’s student precedent.” 362 No. 167, at slip op. 4.
Despite this language, the Board stops short of determining the employment status of FBS scholarship athletes, instead stating that “if the circumstances of Northwestern’s players or FBS football change such that the underpinnings of our conclusions regarding jurisdiction warrant reassessment, the Board may revisit its policy in this area.” Id. at 6. The Board fails to elaborate as to what circumstances might bring about such reconsideration.
The decision’s ramifications will likely stretch far beyond the Northwestern scholarship football players to whom the NLRB tried to limit its decision, discouraging unionization efforts at other private institutions. The NLRB’s decision may also impact athlete unionization efforts at public institutions, even though they are not subject to the NLRA. Some states have excluded college athletes from the definition of employee under the state labor law; while other states may look to the Northwestern decision and adopt the same rationale, particularly given that the athletes often compete against teams from multiple states.