NLRB Issues Long-Awaited Decision on Northwestern University Football Players
On August 17, the National Labor Relations Board issued a unanimous decision dismissing a representation petition filed by a group of Northwestern University football players seeking to unionize — a landmark decision in a case which had the potential to significantly alter the makeup of college athletics.
The decision comes 16 months after the Board’s regional director in Chicago, Peter Ohr, ruled that the Northwestern players receiving football scholarships are employees and have a right to organize under the National Labor Relations Act. Ohr ruled that the players’ extensive athletic duties, oftentimes requiring 50 hours a week or more of dedication, require a greater commitment of hours than “many undisputed full-time employees” and certainly exceed the amount of time players spend on their studies. Northwestern appealed the director’s decision to the full Board, arguing that evidence which clearly shows the players are primarily students and not athletes was ignored.
After considering the arguments of both parties in the case and various amici, including one from CUPA-HR, the Board took the unusual step of declining to assert jurisdiction. The Board reasoned that asserting jurisdiction would not promote labor market stability “due to the nature and structure of NCAA Division I Football Bowl Subdivision (FBS).” The Board noted that under the statute, the agency “does not have jurisdiction over state-run colleges and universities, which constitute 108 of the roughly 125 FBS teams [and that] every school in the Big Ten, except Northwestern, is a state-run institution.” Thus, the Board would only have jurisdiction over a small portion of the league, creating inconsistent labor relations rules among the various teams. In all of its past cases involving professional sports, the Board noted that it was able to regulate all, or at least most, of the teams in the relevant league or association.
The former co-captain of Northwestern’s team and co-founder of the College Athletes Players Association, Kain Colter, had led the organizing drive. Colter expressed disappointment with the ruling but maintained that the organizing effort brought national attention to the challenges facing college athletes and has resulted in positive change. Although the players voted on whether or not to join the union, the ballots were impounded pending outcome of the appeal by Northwestern University to the Board — and given the decision they will now be destroyed, as the union cannot appeal the result.
The Board’s decision does not definitively resolve the issue of whether college athletes are employees and have a protected right to unionize under the NLRA. NLRB officials were quite clear that this ruling is narrow and only applies to the details set forth in the Northwestern case. The Board did not reject or adopt the reasoning in Ohr’s decision last year and left open the possibility that this issue could be reexamined in the future.