United States: NLRB Declines To Assert Jurisdiction Over Northwestern University Football Players

Last Updated: August 26 2015
Article by Seth H. Borden

Inspiring a torrent of “punt”-related puns, the National Labor Relations Board on Monday declined to assert jurisdiction over the unionization effort of scholarship football players at Northwestern University. In Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015), a unanimous decision of all five Board Members held:

…we conclude, without deciding whether the scholarship players are employees under Section 2(3) [of the NLRA], that it would not effectuate the policies of the Act to assert jurisdiction in this case.

In so doing, the Board reversed the March 26, 2014 decision of the Regional Director, and dismissed the petition, thereby rendering moot the sealed results of the balloting held on April 25, 2014.

Much of the Regional Director’s decision, and the arguments of the student-athlete organizers and allies, focused on whether or not the day-to-day experience and grant-in-aid “compensation” of the students rendered them more like “employees” within the meaning of the NLRA. The Board’s decision, on the other hand, focused on the difficulties in pursuing productive collective-bargaining within the current structure of the Football Bowl Subdivision (“FBS”) of the NCAA. The top division of NCAA football incorporates conferences containing a mixture of (few) private and (many) public institutions — the latter over which, the Board would have a difficult, if not impossible, time of asserting jurisdiction. Injecting itself into such a patchwork of regulatory schemes would complicate, rather than promote stability in labor relations:

Some states, of course, permit collective bargaining by public employees, but others limit or prohibit such bargaining. At least two states — which between them, operate three universities that are members of the Big Ten [along with Northwestern] — specify by statute that scholarship athletes at state schools are not employees. Under these circumstances, there is an inherent asymmetry of the labor relations regulatory regimes applicable to individual teams. In other contexts, the Board’s assertion of jurisdiction helps promote uniformity and stability, but in this case, asserting jurisdiction would not have that effect because the Board cannot regulate most FBS teams. Accordingly, asserting jurisdiction would not promote stability in labor relations.

Ultimately, the Board declined to answer the question posited last year by a simple labor law blogger in the WSJ:

“This ruling would potentially be the beginning of the end of the NCAA as we know it,” said Seth Borden, who represents employers in labor-relations matters…. “This ruling can only ultimately apply easily to private universities, so what happens in conferences where you’ve got private universities competing with public universities?” he asked.

This ruling by the Board will likely have no impact on the collective FLSA action recently filed by former student-athletes against the National Collegiate Athletic Association and member institutions. That suit alleges that the student-athletes were “temporary employees” who must be paid the minimum wage under the Fair Labor Standards Act. Now that the traditional union organizing route via the NLRB appears to be a dead end, one would expect the CAPA, student-athletes and their other allies to pursue their goals by forum-selective litigation like this.

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