By: Felicity S. Hanks, Esq. (fhanks@hillwallack.com)

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: https://www.nlrb.gov/news-outreach/news-story/nlrb-director-region-13-issues-decision-northwestern-university-athletes

[2] The NLRB 8/17/15 decision can be accessed at: https://www.nlrb.gov/news-outreach/news-story/board-unanimously-decides-decline-jurisdiction-northwestern-case