A private attorney (perhaps a fan of the rival Fighting Illini?) filed an unfair labor practice charge, alleging that the Northwestern University Football Handbook contained rules that interfered with the scholarship players’ Section 7 rights. The charge piggybacked on proceedings before the Board that ended in August 2015, when the Board found that the Northwestern players were “employees” under the NLRA but declined to exercise jurisdiction to permit them to have a representation election. The charge alleged that four provisions of the handbook violated the NLRA. The regional office of the Board submitted the case to the General Counsel’s Division of Advice, and on September 22, 2016, the Division issued an Advice Memorandum.
In the Advice Memorandum, the Division of Advice analyzed the provisions as it would an “employee handbook” and found that the following four provisions violated the NLRA:
- A social media policy that allowed the University to monitor all social media postings and prohibited players from posting anything that would be embarrassing to the University.
- A rule that prohibited players from discussing any aspects of the team – including player condition or strategies – with anyone.
- A rule that prohibited players from speaking to the media without approval from the Athletics Communications Office.
- A dispute resolution policy requiring that complaints and grievances be handled internally first and limiting players’ ability to talk to third parties in the complaint or grievance process.
The Division of Advice recommended that no complaint issue because the University had modified the handbook to remove the offending provisions. That’s good news for Northwestern, but private universities with scholarship athletes should be aware that the Board is continuing to press its theory that scholarship players are “employees” subject to the NLRA. They should also be aware of the Columbia University decision that we reported on recently, in which the Board ruled that teaching assistants paid and controlled by Columbia were “employees” under the NLRA and could organize a union. Private academic institutions may want to plan for the future expecting the Board to become more, not less, aggressive in its expansion of power, and for the courts to increasingly uphold those efforts if the courts’ composition changes due to political developments.