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NLRB Throws Flag at Northwestern Football Players

January 19, 2016

By Nancy B.G. Lassen

A unanimous 2015 decision of the National Labor Relations Board (NLRB) has ended the union organizing effort of Northwestern University’s scholarship football players. In Northwestern University, 363 NLRB No. 167 (2015), without deciding whether the scholarship players were “employees” under the Section 2(3) of the National Labor Relations Act (NLRA), the board concluded that “it would not effectuate the policies of the Act” for it to assert jurisdiction in the Northwestern case. The board thus dismissed the players’ election petition and consigned the sealed results of their April 25, 2014 election to the dust bin.

While the regional director’s decision directing an election focused on whether daily working conditions and financial grants made the players “employees” within the meaning of the Act, the board focused instead on systemic problems with collective bargaining within the NCAA structures of collegiate football.

One problem is that the NCAA’s Football Bowl Subdivision is predominantly composed of public colleges that are not subject to the NLRA. Northwestern, for example, is the only private college in the Big Ten Conference. According to the board, injecting the NLRA into overlapping regulatory schemes would undermine, not promote, stability in labor relations:

“Some states, of course, permit collective bargaining by public employees, but others limit or prohibit such bargaining. At least two states – which, between them, operate three universities that are members of the Big Ten – specify by statute that scholarship athletes at state schools are not employees. Under these circumstances, there is an inherent asymmetry of the labor board regulatory regimes applicable to individual teams. In other contexts, the Board’s assertion of jurisdiction helps promote uniformity and stability, but in this case, asserting jurisdiction would not have that effect because the Board cannot regulate most FBS (Football Bowl Subdivision) teams. Accordingly, asserting jurisdiction would not promote stability in labor relations.”

Of course, the board’s decision in Northwestern University does not necessarily mean that the game is over for college athletes. By not rejecting the “student athletes are employees” analysis, the board’s decision does not undermine a recent Fair Labor Standards Act class action suit filed by former student athletes against the NCAA and its member schools. If student athletes are “employees” under the NLRA, it is not a stretch to conclude that they also are employees under the FLSA and thus entitled to minimum wage plus overtime for any hours worked over 40 per week. The implications of that litigation could widely affect college athletics and recognizes the enormous revenues generated by student athletes.

For more information regarding the Northwestern University case, or about any union-organizing or wage-and-hour issues in the workplace, contact any of the Labor Law attorneys at Willig, Williams & Davidson at (215) 656-3600.

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