NLRB Dismisses Petition to Unionize Northwestern University Football Players
In January 2014, Northwestern University football players receiving athletic scholarships filed a petition with the National Labor Relations Board (the “NLRB” or “Board”) seeking to certify the College Athletes Players Association (“CAPA”) as their collective bargaining representative. Northwestern University opposed the players’ petition, arguing, among other things, that the student athletes were not “employees” under the National Labor Relations Act (the “NLRA” or “Act”), and thus could not form a union. In March 2014, an NLRB Regional Director determined that the scholarship football players were “employees” under the NLRA, and ordered an election to determine whether a majority of these players supported unionization. After the election was conducted in April 2014, the NLRB granted the University’s request for review of the Regional Director’s decision that the student athletes are “employees” under the Act.
On August 17, 2015, the NLRB issued a unanimous decision that declined to answer the question whether college football players receiving athletic scholarships are “employees” under the NLRA. Northwestern University, 13-RC–121359 (Aug. 17, 2015). Instead, the Board dismissed the athletes’ petition for a unionization election, finding that it “would not effectuate the purposes of the Act” to assert jurisdiction over scholarship football players at Northwestern University, regardless of whether they qualified as “employees” under the Act.
The Board concluded that “it would be difficult to imagine any degree of stability in labor relations” if it exercised jurisdiction over the scholarship football players from this single team for two primary reasons: the nature of the National Collegiate Athletic Association (“NCAA”) Division I Football Bowl Subdivision (“FBS”) organization; and the structure and composition of the approximately 125 other member schools.
The Board reasoned that because the NCAA regulates the conduct of FBS member schools vis-à-vis scholarship athletes and establishes many of the terms and conditions under which these players practice, play, and conduct themselves off the field, labor issues involving Northwestern would likely affect the other FBS teams, the NCAA, and the “Big Ten” NCAA Conference (of which Northwestern is a member). The Board emphasized that, in light of the “symbiotic relationship” between the FBS schools, Board jurisdiction over the Northwestern University scholarship football players would not promote stability in labor relations, particularly because approximately 110 of the FBS schools (including all of Northwestern’s competitors in the Big Ten Conference) are state colleges and universities that cannot be regulated by the Board, but which would instead be governed by their respective states’ laws regarding public employee unions.
The Board further noted that a bargaining unit consisting of a single team’s player’s would be unprecedented under past or current law as, even for professional athletes – such as players in the National Football League – the Board has never asserted jurisdiction over a single team as an employer, but rather traditionally exercises jurisdiction over a league-wide bargaining unit (the exception being North American Soccer League, 236 NLRB 1317 (1978), where the Board declined to exercise jurisdiction over the now-defunct league’s two Canadian teams).
In closing, the Board noted that the NCAA rules regarding scholarship athletes had “changed markedly in recent years,” and that developments in the “situation of scholarship players” may induce it to revisit the issue. While the Board’s decision in this case by no means provides finality on the question of whether scholarship student athletes might be “employees” for purposes of federal labor law, it – at the very least – indicates that the Board will not view groups consisting of a single collegiate team’s scholarship players as an appropriate bargaining unit under the NLRA under current circumstances. The Board did, however, take care to limit its finding that exercising jurisdiction over the Northwestern University scholarship football players would be inappropriate to the facts of the case, indicating that it may be more amenable to efforts to unionize college athletes on a broader scale. The Northwestern University decision specifically indicates that the Board “might” take a different approach to a petition to unionize scholarship football players at all of the private FBS schools within a single bargaining unit, but declines to discuss what such an approach would be.
The Board’s decision to decline jurisdiction over the college football players in Northwestern University is a stark outlier among its contemporary decisions. In recent years, the Board has been anything but reluctant to assert jurisdiction over putative employees in myriad non-traditional settings, including at tribally-owned casinos and airport contractors. This case should not be viewed as the potential beginning of a broader trend in which the NLRB will scale back its involvement in the private workforce, particularly given the Board’s expanded efforts to enforce federal labor laws in non-union workplaces. Most – if not all – employers would be disserved by attempting to rely on the decision in assessing any concerns about the unionization of their own workforce or the potential application of the NLRA to their own workers.