On September 22, 2016, the Associate General Counsel (“AGC”) for the National Labor Relations Board (“NLRB,” or the “Board”) issued an Advice Memorandum indicating that a number of policies in the Northwestern University Football Handbook were unlawful under the National Labor Relations Act (the “Act”). By subjecting the handbook to the Act, and referencing these scholarship football players as employees, the NLRB seems to be more concretely articulating its position on the status of student-athletes as employees. The Memo is the latest in a seemingly back and forth and abstract saga. If you remember, the Board punted the issue of student-athletes’ employment status back in August 2015 when it declined to exercise jurisdiction over the representation petition involving Northwestern University and College Athletes Players Association. You can see our previous coverage here and here. The Advice Memorandum, although not a Board decision confirming the status of scholarship student-athletes as employees, provides additional fuel for student-athletes at private institutions to reignite their unionization and pay-for-play efforts.

In reviewing the football handbook, the NLRB found four policies unlawful under the Act. The first was the University’s social media policy. The policy prohibited players from posting anything on their personal social media pages that would embarrass the Athletic Department or the University in general. The policy also gave the University unfettered access to the players’ social media pages. The AGC found these policies to be unlawfully overbroad and reasonably calculated to dissuade players from exercising their Section 7 rights to discuss the terms and conditions of employment. The AGC noted, however, that the University revised and deleted these provisions in response to the charge in this case.

Next, the handbook prohibited players from discussing “any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone.” The AGC also found this policy unlawful because the prohibition against discussions about health and safety issues “would be reasonably construed to prohibit Section 7 activity.” The University modified the policy to allow students to discuss general medical and safety issues with third parties without naming specific student names. The AGC noted that this modification “struck the proper balance” between the players right to speak out about these issues, student confidentiality, and protecting football team information.

The handbook also contained a policy that prohibited student-athletes from speaking with the media without prior approval from the athletic communications office. By modifying the policy to include the option of allowing the player to speak to a media representative directly or referring the representative to the athletic communications office, the players’ Section 7 rights were no longer impinged upon because they could speak out about their terms and conditions of employment to members of the media.

Finally, the handbook included a dispute resolution policy, which has since been deleted in full. The dispute resolution mechanism required that any complaints or grievances concerning personal rights and/or relationships with the athletic program were to first be taken to the Director of Football Operations. If unresolved, the complaint went to the head coach, Senior Associate Athletic Director for Intercollegiate Services, the Faculty Committee on Athletics and Recreation, and then to the President of the University. Only at the point of taking the grievance to Senior Associate Athletic Director was a player allowed to involve a third party. This grievance procedure interfered with the exercise of Section 7 rights because it prohibited discussion amongst players and third parties “concerning workplace grievances.”

The AGC’s review of the University’s football handbook is in line with the NLRB’s General Counsel’s Memorandum related to employer handbook policies issued in March 2015. See our alert on that memo here. However, it is not simply the AGC’s position on the lawfulness or unlawfulness of these policies that makes the Advice Memorandum one of significance. Instead, what is most important is that by finding these policies unlawful under the Act and treating scholarship student-athletes as statutory employees, the AGC has added more fuel to the argument that these student-athletes are employees and should be paid for their services.

It is important to note that the Act only covers private employers. Thus, only student-athletes at private institutions would be affected by any decision to treat student-athletes as employees. However, it is likely that any decision by the NLRB on this matter will influence the treatment of student-athletes in public schools.