Last year, the National Labor Relations Board (NLRB), through its Region 13 Regional Director ruled that Northwestern University football players who receive grant-in-aid scholarships and have not exhausted their playing eligibility are “employees” under the National Labor Relations Act (NLRA), and therefore have the right to unionize and engage in collective bargaining with their “employer.” We reported on the potential implications of that decision and the likelihood of subsequent legal challenges to this ruling.
After last year’s decision, Northwestern filed a request for the NLRB Board to review that decision. The Board granted Northwestern’s request for review. On August 17, 2015, the Board issued a decision in which it unanimously declined to assert jurisdiction over this matter and dismissed the players’ representation petition. Importantly, the Board did not determine if the players were statutory employees under the NLRA. Rather, the Board decided that asserting jurisdiction would not “effectuate the policies of the Act” and “would not serve to promote stability in labor relations.”
As pointed out in our report on the initial ruling, the NLRB does not have jurisdiction over public universities. Of the approximately 125 college and university teams in NCAA Division I FBS football, the vast majority of these competitors are public colleges and universities for which the NLRB cannot assert jurisdiction. This means that if the NLRB chose to assert jurisdiction over only the Northwestern team players, there would very likely be ramifications and possibly some substantial unintended consequences for the other NCAA football teams. For instance, it would likely significantly impact competitive balances for players on one team and not others to have federally mandated collective bargaining rights. This would not promote stable labor relations across the league. Indeed, Northwestern is the only private school in its conference (the Big 10). The NLRB has no jurisdiction over any of its primary competitors. In its conclusion, the Board also noted that “recent changes as well as calls for additional reforms, suggest that the situation of scholarship players may well change in the near future.” For all these reasons the NLRB declined to assert its jurisdiction here.
Again, the Board did not decide whether these players were statutory employees. Also, the Board’s decision was very narrowly focused to the specific facts and circumstances of this case and applies only to the Northwestern players in this case. This means that this issue can and likely will be reconsidered in the future.
It will likely take many years and many more legal challenges to play out this issue and its potential implications on the employer/employee relationship in the context of college athletics.