The National Labor Relations Board (NLRB or Board) declined to assert jurisdiction over the petition filed by a union seeking to represent Northwestern University’s scholarship football players. In 2014, the Regional Director for the Region covering Northwestern University found that Northwestern’s football players who received grant-in-aid scholarships were employees within the meaning of the National Labor Relations Act (NLRA or Act) and were entitled to petition for union representation. In its unanimous decision announced yesterday, the Board dismissed that union petition, deciding that it would not assert jurisdiction over these specific college athletes as doing so would not promote stability in labor relations or further the purposes of the Act. 

Board Refuses to Decide Whether College Athletes Are Statutory Employees 

After considering the positions of the union seeking to represent Northwestern’s football players, the University, who contended that its scholarship players were not statutory employees, and the many interested parties who submitted briefs, the Board refused to decide the controversial issue raised by the Regional Director’s 2014 decision, namely whether Northwestern’s grant-in aid scholarship football players are employees under the NLRA. Instead, by refusing to assert jurisdiction, the Board dismissed the union’s petition to represent this group of college athletes, effectively nullifying the impounded ballots that had been cast in the union election in April 2014. 

Single Team Athletes Unlike Other Covered Cases 

The Board distinguished this group of athletes from other types of students and athletes for which the Board has asserted jurisdiction. First, the Board focused on the nature of the college sports leagues and structure of college football bowl divisions. It noted that the National Collegiate Athletic Association (NCAA) and the Big Ten Conference (to which Northwestern University belongs) dictate eligibility requirements, minimum academic standards, scholarship terms, amateur status, mandatory practice hours and other rules under which the scholarship athletes may compete. The Board saw these rules as distinguishing the scholarship players from graduate student assistants or student janitors and cafeteria workers whose employee status the Board had considered in other cases. 

The Board then distinguished Northwestern’s scholarship players from professional sports leagues, which are covered by union contracts. Previous Board cases involving professional sports have involved leaguewide bargaining units that cover all players across the league. Here, the union sought to represent players from a single team. The Board cannot assert jurisdiction over the majority of colleges and universities that make up the college football divisions as the vast majority are public institutions which are not employers under the Act. Consequently, the Board could not assert jurisdiction over most of Northwestern’s primary competitors. The Board found that asserting jurisdiction over a single team, rather than across an entire league, would not promote stability in labor relations. 

Rare Limit On Board’s Reach 

In recent years, the Board has extended its reach, offering NLRA protections in expansive ways and revising rules to make it easier for unions to win elections. Today’s ruling is a rare exception to that expansive trend, curtailing the reach of the NLRA to the scholarship football players at a private university. The Board did, however, express the limited nature of this decision, noting that changed circumstances may prompt a reconsideration of this issue in the future. We’ll have to wait to see if unions try again to organize scholarship athletes under different conditions.