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 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 at this time to find student athletes to be statutory employees. Especially in an election year, the NLRB likely does not want to rock the political boat too much. 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.).