NLRB Unanimously Reverses Order for Union Election by Northwestern Football Players Jones Day Labor Blog
On August 17, 2015, the National Labor Relations Board ("NLRB" or the "Board") issued its much-anticipated decision in Northwestern University, 362 NLRB No. 167 (Case No. 13-RC-121359), the union representation case involving scholarship members of the Northwestern University football team. In a rare 5-0 decision, the Board on the one hand sacked the petition for union representation by exercising its unreviewable discretion to decline to assert jurisdiction, thereby reversing the Regional Director's order to hold a union election. On the other hand, the Board punted by repeatedly disclaiming that it was deciding the significant statutory issues presented in the case, including whether scholarship student-athletes are or may be university "employees" under the National Labor Relations Act ("NLRA" or the "Act"). The one conclusion reached by the unanimous Board was that "it would not effectuate the policies of the Act to assert jurisdiction in this case, even if we assume, without deciding, that the grant-in-aid scholarship players are employees within the meaning of Section 2(3)." 362 NLRB No. 167, at slip op. 1.
In so holding, the Board explained that even where it has the statutory authority to act, it "‘sometimes properly declines to do so, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case.'" Id. at slip op. 3 (quoting NLRB v. Denver Building Trades Council, 341 U.S. 675, 684 (1951)). Here, the Board's decision to decline to exercise jurisdiction was "primarily premised on a finding that, because of the nature of sports leagues (namely the control exercised by the 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), it would not promote stability in labor relations to assert jurisdiction in this case." Id. at slip op. 3. Indeed, the Board noted that in the case of the National Collegiate Athletic Association ("NCAA") Division I Football Bowl Subdivision ("FBS"), in which Northwestern University's football team participates, 108 of the 125 participating universities are public colleges or universities over which the Board cannot assert jurisdiction. Id. slip op. at 5. The Board also emphasized that Northwestern is the only private school competing in the 14 member Big Ten Conference, "and thus the Board cannot assert jurisdiction over any of Northwestern's primary competitors." Id.
While the Board's decision reversing the Regional Director's order to hold a union election is undoubtedly a victory for Northwestern and those opposed to the professionalization of college athletics, the Board left open the possibility that it "might assert jurisdiction in another case involving grant-in-aid scholarship football players (or other types of scholarship athletes)." Id. at slip op. 1. That said, the Board provided no guidance as to what circumstances might be sufficient to lead the Board to assert its jurisdiction over college athletes. Moreover, the Board declined to decide, or offer any guidance on, the significant issue of whether and under what circumstances student-athletes may be deemed to be university employees for purposes of the NLRA.
As it is, while the legal issues were not "decided" by the Board, the practical implication of the Board's decision is to make it extraordinarily difficult for student-athletes at private universities to unionize through a NLRB supervised election. The decision also makes it more difficult for unions to organize student-athletes under state labor relation laws, many of which are modeled on the NLRA, given the similar problem that any single state labor board would lack jurisdiction over the competing schools in another state, or over private universities, which fall within the NLRB's exclusive jurisdiction (whether exercised or not). As a result of this decision, unions and/or individuals may shift their efforts to have scholarship student-athletes determined to be employees of the colleges or universities they attend to another forum, such as the Department of Labor or OSHA.
Note: Jones Day filed two amicus briefs supporting Northwestern University's position, including a brief on behalf of the University of Notre Dame, Trustees of Boston College, and Brigham Young University, and a brief on behalf of the Association for the Protection of College Athletes. For links to the amicus briefs filed by Jones Day see our July 8, 2014 post on this topic.
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Michael S. Ferrell
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