NLRB Dismisses Northwestern University Football Players’ Union Election Petition

Posted by on Aug 19, 2015 in NLRB, School Law

By: Felicity S. Hanks, Esq. (

In January 2014, football players at Northwestern University (“Northwestern”) filed a historic union election petition with the National Labor Relations Board (“NLRB”) seeking to unionize and claiming that they were university employees. We blogged about it last year and much has happened since that post, culminating in a surprising NLRB decision issued this month.

NLRB Regional Director Peter Sung Ohr acted on the players’ petition on March 26, 2014, and ruled that the football players were “employees” of Northwestern, primarily due to the football program’s commercial activity and profitability, in addition to the extraordinary levels of control that Northwestern and its coaches had over the players’ lives.[1] Northwestern appealed the decision to the NLRB. For the last several months, players, the NCAA, colleges, and labor practitioners alike have been awaiting the NLRB’s decision with interest, but some sport enthusiasts and labor watchers might say that the NLRB swallowed its whistle on this one.

In a unanimous decision, the NLRB declined to assert jurisdiction over the case and dismissed the football players’ petition.[2] In doing so, the NLRB avoided addressing the merits of Director Ohr’s decision concerning the players’ status as employees. The NLRB held that that exercising jurisdiction over this case would not promote labor stability due to the nature of the NCAA Division I Football Bowl Subdivision (“FBS”) in which Northwestern University participates. The majority of the schools in the FBS, unlike Northwestern, are public institutions not subject to the National Labor Relations Act (“NLRA”), and therefore a substantive decision on the players’ petition would create an unwanted piecemeal treatment of players within the league.

Importantly, by declining to exercise jurisdiction, the NLRB did not decide whether student-athletes in general, or at Northwestern in particular, have the ability to unionize as employees under the NLRA. The decision does not preclude student athletes at other institutions from attempting to organize under the NLRA or state-specific public employer labor relations laws. It is likely that the issue of athletes as employees will come up again in the not-so-distant future. As the question of whether one is an employee is so fact specific it is typically a case-by-case basis as to whether a class of individuals may be deemed employees. After this decision, however, we now know that if faced with this issue in the future, the NLRB will not limit its inquiry into the specific institution, but will consider implications on the league as a whole.

This article is for informational purposes only and does not constitute legal advice or a legal opinion. All employers should seek legal counsel when addressing matters related to its employees or unionization efforts.

[1] The Regional Director’s 3/26/14 decision can be accessed at:

[2] The NLRB 8/17/15 decision can be accessed at:



Read More

California Court Finds Teacher Employment Statutes Unconstitutional

Posted by on Jul 11, 2014 in School Law, Uncategorized

By Felicity S. Hanks, Esq. (

In a decision that has sparked interest from the beaches of Malibu to the beaches of Sea Isle, a Los Angeles County, California Superior Court ruled that three teacher employment laws – California’s Permanent Employment, Dismissal, and LIFO (last in, first out) Statutes – were unconstitutional.*[1]

Decided on June 10, 2014, the case, Vergara v. California, was brought by nine California public school students claiming that the statutes resulted in “grossly ineffective teachers” attaining tenured positions which disproportionately affected low income and minority students. The Court agreed, ruling that the three statutes violated the children’s fundamental right to equality of education.

Read More

Educational Employers: Tackling Crime-Related Liability

Posted by on Mar 24, 2010 in School Law

By: Tiffanie Benfer, Esq.
Boards of education and private educational entities contend with a wide variety of challenging employment issues on a daily basis. Educational employers are exposed to employer liability through an array of occurrences between their employees, students, vendors, visitors and other community members.. To combat these potential liabilities, educational employers should focus on preventative and predictive measures rather than on reactive measures—a shift in thinking and policy making that can lead to significant cost savings.

Read More

Unanimous Supreme Court Allows Suit Against School for Its Failure to Properly Respond to Student-on-Student Sexual Harassment

Posted by on Jan 22, 2009 in Gender Discrimination, School Law, Sexual Harassment

By: Tiffanie Benfer, Esq.
Yesterday the Supreme Court unanimously held that students who are sexually harassed in school may bring a claim under Title IX and under Section 1983 of the civil rights laws. Thus, the Supreme Court resolved a split in the circuits (the intermediate appellate courts) in favor of allowing civil rights suits to go forward. This pro-plaintiff decision was a surprise from the current Supreme Court.
In Fitzgerald v. Barnstable School Committee, 2009 WL 128173 (U.S. 2009), the parents of a kindergarten student reported to the school that their daughter was bullied and sexually harassed by a third grader on the school bus. They told the school that the older child made their daughter pull up her dress, pull down her underpants and spread her legs. The parents were not satisfied when the school suggested transferring their daughter to a different bus, feeling that the proposed solution would punish the wrong child.

Read More