In an advice memorandum issued on September 22, 2016,
the National Labor Relations Board's Office of the General
Counsel declined to issue a complaint against Northwestern
University for certain football team rules despite finding those
rules violative of the National Labor Relations Act. Unlike
the Board's decision not to assert jurisdiction over the
unionization effort of scholarship football players at Northwestern
University last year, the General Counsel's Division of
Advice's decision does not purport to be based on the potential
complexities created by finding student athletes to be statutory
employees under the Act. Instead, the Division of Advice asserts
that "it would not effectuate the policies and purposes of the
NLRA to issue complaint in this case because the Employer, although
still maintaining that athletic scholarship football players are
not employees under the NLRA, modified the rules to bring them into
compliance with the NLRA and sent the scholarship football players
a notice of the corrections, which sets forth the rights of
employees under the NLRA."
The rules at issue were a social media policy, a policy limiting
disclosure of strategies and player injuries, a dispute resolution
procedure, and a rule for communicating with the media set forth in
the University's Football Handbook applicable to members of the
team. The Division of Advice, assuming for purposes of its
memorandum that scholarship athletes are statutory employees, found
that each policy as originally drafted violated the Act. While the
Division of Advice found that the university corrected the
violations by revising or striking the policies in response to the
unfair labor practice charge, the Division of Advice concluded that
the university did not adequately repudiate the unlawful rules
under the Board's Passavant standard. Nevertheless,
the General Counsel's Division of Advice advised the regional
office to dismiss the unfair labor practice charge.
Given that the General Counsel believed that it had sufficient
basis to issue a complaint, what might explain this
uncharacteristic decision? First, given that such gracious gestures
by the NLRB are few and far between (as evidenced by
its aggressive tactics), the reason may be that the NLRB
remains hesitant, for the time being, to find that student athletes
are statutory employees given that it is an election year. Second,
the NLRB may be battling for field position by using this advice
memo to set up such a decision in the future, as the advice memo
certainly puts private universities on notice that while the NLRB
may not be willing to let student athletes unionize–at least
not yet–the NLRB is poised to treat student athletes as
statutory employees for all other purposes under the Act.
Accordingly, while private universities currently do not have to
worry about unionization of their scholarship athletes, they should
prepare themselves for potential challenges under the NLRA to their
rules governing the conduct of student athletes, as well as how the
NLRB's position might impact other aspects of their
relationships with student athletes (e.g., wage and hour issues,
workers' compensation, etc.).
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