Most Read Contributor in United States, December 2016
The Division of Advice's memorandum, which is dated
September 22, 2016, analyzed four policies contained in
Northwestern's "Football Handbook" to determine
whether the policies could be reasonably construed to prohibit
Section 7 activity. See, e.g., Guardsmark, LLC v.
NLRB, 475 F.3d 369, 374 (D.C. Cir. 2007) ("To determine
whether a work rule violates NLRA section 8(a)(1), the Board
considers whether the rule would reasonably tend to chill employees
in the exercise of their statutory rights. . . . [I]f nothing in
the rule explicitly restricts section 7 activity, then . . . the
rule violates the Act if . . . employees would reasonably construe
the language to prohibit Section 7 activity.") (quotations and
The Division of Advice analyzed four allegedly unlawful policies
from the "Football Handbook": (1) the "Social Media
Policy," which stated that players' social media sites
would be monitored and "sanctions" issued against players
for improper postings; (2) the "Sports Medicine & Player
Communication Rule," which sought to preclude players from
discussing "any aspects of the team . . . with anyone,"
including "the physical condition of any players"; (3)
the "Dispute Resolution Procedure," which provided that
any "complaint or grievance concerning personal rights and
relationships to the athletic program" must be grieved
according to a four-step process and could be discussed only with
football and athletic department employees; and (4) the
"Athletic Communications for Student Athletes Rule,"
which stated that all interviews must be handled through the
athletic communications office, and any statements made by players
in those interviews should be "positive when talking about
your teammates, coaches and team."
The Division of Advice determined that all four policies could
reasonably be construed as prohibiting Section 7 activity.
Collectively, the challenged policies violated Section 8(a)(1)
because, among other things, they could reasonably be construed to
preclude "discussions about vital health and safety
issues," prohibit "discussions with fellow players and
third parties concerning workplace grievances," and limit the
timing and content of media interviews. Despite the fact that
Northwestern "d[id] not adequately repudiate the unlawful
handbook rules," the Board declined to issue a complaint
because (i) the university modified the "Football
Handbook" to address the policies' shortcomings and (ii)
provided notice to the players regarding the handbook
The Advice Memorandum is notable because it involves the
application of federal labor law to intercollegiate
athletics. However, the Advice Memorandum's impact should
not be overstated, particularly as it relates to athlete
compensation and union representation. First and foremost,
the Advice Memorandum does not have the legal effect of a Board
decision. "Division positions are prosecutorial, not
adjudicative, in character: they are not attributable to the Board,
and they are not reviewable in court." Constr.,
Bldg. Material, Ice & Coal Drivers, Helpers & Inside
Employees Union, Local No. 221, v. NLRB, 899 F.2d 1238, 1241
(D.C. Cir. 1990). Second, the Advice Memorandum did not
address the central issue arising from the football players'
prior representation proceeding – i.e., whether
scholarship football players are statutory employees under Section
2(3) of the Act. Instead, the Division of Advice noted in a
footnote that it had simply "assume[d], for purposes of this
memorandum, that Northwestern's scholarship football players
are statutory employees." Moreover, although
Northwestern modified its policies in the "Football
Handbook" to comply with the Act, it reserved its right to
challenge any subsequently filed representation petition on the
grounds that scholarship football players are not statutory
employees. As expressly noted in the Advice Memorandum,
Northwestern "still maintain[ed] that athletic scholarship
football players are not employees under the [Act]."
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