NLRB Punts on Whether Northwestern University Football Players Be Allowed to Unionize
On Monday, the full National Labor Relations Board unanimously dismissed a petition by college football players at Northwestern who sought permission to unionize. This decision effectively overturned the regional director’s ruling last year that college players on scholarship should be classified as employees based on the control exercised over them by the athletic department of the school.
The Board opinion expressly avoids deciding the primary issue in the case—whether student athletes are statutory employees under the National Labor Relations Act. Instead, the Board stated that it was choosing not to exercise jurisdiction because it felt that to do so would “not promote stability in labor relations.” The ruling notes that this case presented the first situation in which the NLRB had been asked to exercise jurisdiction over college football or any college athletes of any kind. As such, any decision could not be limited to football players at Northwestern; it would also affect the Big Ten and even the NCAA itself. The Board also noted that any change could also affect state-run schools, over which the NLRB has no jurisdiction. In addition, the Board recognized that there have been some positive changes in how college athletes have been treated.
The ruling does leave the Board some wiggle room to address this issue in the future. The opinion makes numerous statements that they are specifically not making an ultimate ruling as to whether college athletes can be considered employees under the NLRA. The end of the ruling also points out that this finding applies only to the Northwestern football program and does “not address what the Board’s approach might be to a petition for all [Football Bowl Subdivision] scholarship football players (or at least those at private colleges and universities).”
This ruling is a big reversal of field for the NLRB, which appeared, at least through the regional director’s decision last year, to be prepared to fully tackle the scholarship player issue. That match-up appears to have been postponed for now. For employers, this should serve as yet another lesson of the unpredictability that is seen with this Board.