In a much-anticipated decision inspiring countless football-themed puns, the National Labor Relations Board (the “Board”) declined to assert its jurisdiction over the effort to unionize by Northwestern University’s scholarship football players. Issued on August 17, 2015, the decision comes on the eve of a new college football season.
In Northwestern University, 362 NLRB No. 167 (Case No. 13-RC-121359), did the unanimous Board “sack” the Northwestern football players by exercising its unreviewable discretion not to accept jurisdiction or did the Board “punt” by not deciding the significant statutory issue of whether scholarship student-athletes may be “employees” under the National Labor Relations Act (“NLRA”). It is fair to say the five-member Board did both by narrowly confining its decision to the petition by the Northwestern University football players, but noting “that subsequent changes in the treatment of scholarship players could outweigh the considerations that motivate[d]” the decision.
The Players’ Petition
Nearly seventeen months ago, Regional Director Peter Sung Ohr determined that the Northwestern football players were employees who could form a union under the NLRA. Ohr ruled that the scholarship players were employees based on the hours spent each week on football, the financial aid they received (up to $76,000 if the player enrolled in classes during the University’s Summer session), and the strict control the University imposed on the players throughout the year. The seventy-six eligible players then voted whether to join the union. It would have been college sports’ first labor union. Those ballots, impounded during Northwestern’s appeal of the Regional Director’s decision, now will be destroyed.
The Board’s Decision
The Board concluded that asserting its jurisdiction would not serve to promote stability in labor relations. This decision was premised on two considerations: the nature of sports leagues and the composition of the NCAA’s Division I Football Bowl Subdivision (“FBS”). The Board emphasized the unique nature of sports leagues and the control those leagues assert over their individual teams. The Board explained that any labor issue directly involving Northwestern also necessarily would affect the Big Ten and the NCAA, because of the symbiotic relationship that exists among the NCAA and its constituent conferences and teams. At the same time, the Board was concerned about one team having that effect when the Board does not have jurisdiction over any team in the Big Ten other than Northwestern or over 108 of the 125 teams in the FBS.
The Board explained that, in declining jurisdiction, it was not deciding the merits of the case—i.e., whether the football players were employees. The Board also made clear that it only was addressing the Northwestern petition; and that its decision did not preclude reconsideration of the issue in the future. For example, if the players at the 17 private colleges and universities in the FBS subject to the Board’s jurisdiction filed a petition.
Candidly, this narrow decision does not mean much for employers not named Northwestern University. There is some useful language for employers battling so-called “micro-units,” smaller units of workers at an employer. It also is a departure from the Board’s recent pro-union and pro-employee decisions.