NLRB passes on football players’ employee status

On August 17, 2015, the National Labor Relations Board (NLRB) declined to assert jurisdiction to determine whether the Northwestern University (Northwestern) scholarship football players should be considered employees under the National Labor Relations Act (NLRA).

In April, we reported that the Regional Director of Region 13 of the NLRB found that scholarship football players from Northwestern University (Northwestern) were “employees” under Section 2(3) of the National Labor Relations Act (NLRA), and he ordered an election so that eligible football players could vote on collective bargaining representation by the College Athletes Players Association (CAPA). Northwestern appealed, and just this week, the NLRB declined to assert jurisdiction.

At the regional level, CAPA argued that the scholarship football players “perform valuable services” for Northwestern, and Northwestern compensates the players by providing tuition, fees, room, board, books, and other miscellaneous benefits, valued at up to $76,000 per calendar year. The Regional Director agreed that this relationship, governed by an employment contract called a “tender,” demonstrates that the scholarship football players are statutory employees. Id. at 14.

In its decision, the NLRB declined to address the issue of the scholarship football players’ claimed “employee” status as asserted by CAPA. Instead, the NLRB relied on the principle that it may decline to exercise its jurisdiction when asserting jurisdiction would not effectuate the policies of the NLRA. Decision on Review and Order at 3. It decided that, “even if the scholarship players were statutory employees . . . , it would not effectuate the policies of the [NLRA] to assert jurisdiction.” Id. In declining to exercise its jurisdiction, the NLRB considered a number of factors:

• The control that the sports leagues exercise over individual sports teams. The NLRB emphasized the National Collegiate Athletic Association’s (NCAA) oversight and role to “set common rules and standards.” Id.at 4.
  
  
• The composition and structure of college football. The vast majority of teams that compete with Northwestern emanate from public universities, over which the NLRB has no jurisdiction. The NLRB expressed concern that that asserting jurisdiction “would not promote stability in labor relations” and noted that previous representation cases for professional athletes involved “leaguewide bargaining units,” whereas this case involved a “seemingly unprecedented” “single-team case.” Id. at 4-5
  
  
• The novel nature of the petition and unique circumstances of the matter. The NLRB noted that it has never been asked to assert jurisdiction in a matter involving a group of college sports teams, let alone a single team. Id. at 3. The NLRB also commented that its “analytical framework” present in past matters fails to fit the college scholarship football player’s situation, as these players “bear little resemblance to” other student situations such as “graduate student assistants or student janitors and cafeteria workers[.]” Id. at 3-4 (citation omitted)
  
  
• Recent changes in Northwestern’s scholarship football team structure and NCAA rules. The NLRB was persuaded that recent college football reforms, including the ability for players to receive a guaranteed 4-year scholarships, “as opposed to 1-year renewable scholarships,” have changed the circumstances of the scholarship football players, such as reducing the likelihood that players will lose their educational opportunities should they become unable to play. Id. at 6.

The NLRB emphasized that it limited the holding “to the particular circumstances of this case.” Id. at 1. It explicitly left open future petitions, including a future petition from the Northwestern scholarship players if their circumstances change “such that the underpinnings of [the NLRB’s] conclusions regarding jurisdiction warrant reassessment” or “a petition for all [NCAA Division I Football Bowl Subdivision] scholarship football players (or at least those at private colleges and universities).” Id. at 6.

The NLRB ducked a highly-watched, extremely controversial issue that had potential implications not just for college football but also for other programs at private educational institutions. We expect that we have not seen the last of the effort to unionize college athletes and that the NLRB’s decision will likely only cause future petitioners to revise their approach to seeking unionization. Stay tuned!