Northwestern University football players cannot form a union, the National Labor Relations Board (NLRB or Board) decided today.

The NLRB based its ruling on its duty to maintain stability in labor relations and notably avoided the question of whether or not the student-athletes qualified as “employees” of the University. Thus, many issues observers anticipated that the Board would address remain unresolved. 

The decision follows the petition of Northwestern grant-in-aid scholarship football players for an election of a bargaining representative. Because the National Labor Relations Act (NLRA) protects only “employees,” the athletes first needed to convince the NLRB that they qualified as employees under the NLRA. If they are not employees of the University, then the Board has no authority to hold an election. In March 2014, the athletes were successful in clearing this first hurdle before an NLRB regional director, who ordered the requested election to take place, though its votes have never been counted. The University appealed the decision and order to the Board which, in today’s decision, overturned the regional director and denied the athletes’ petition.

It did so without considering the student-athletes-as-employees question. Instead, it reasoned that, even if it were permitted to order an election, it should decline jurisdiction over the petition in order to effectuate the policies of the NLRA, including maintaining stability in labor relations.  It noted that scholarship athletes “do not fit into any analytical framework that the Board has used in cases involving other types of students or athletes.” They are also unlike athletes in professional sports leagues. For example, while college football under the National Collegiate Athletic Association (NCAA) bears some organizational similarities to professional leagues, it also has important differences, including the fact that, because of their identity as state-run institutions, many NCAA members are not subject to the NLRA or the Board’s authority. Given all of the uncertainty the petition presented, therefore, the Board determined that stability in labor relations would be best served by its declining jurisdiction over the case.      

Many anticipated that the case would allow the Board the opportunity to clarify its position regarding other university students’ status as employees under the NLRA. In 2000, it had ruled that graduate teaching and research assistants at New York University were employees under the NLRA. It reversed field in 2004, when it determined that graduate teaching and research assistants at Brown University were not employees because their relationship with the University was primarily “educational.” In Northwestern University, the regional director determined that the Board’s Brown University decision did not apply because student-athletes, unlike the graduate and research assistants in Brown, were not “primarily students,” nor were their athletic duties “a core element of their educational degree requirements,” among other differences. In today’s decision, the Board did not address these findings. Therefore, whether or not the Board will take note of such differences in ruling on other student-athlete petitions, and whether it will overturn Brown University, remains unresolved. 

Importantly, the Board specifically noted that today’s decision is limited only to the Northwestern student-athletes who brought the immediate petition. Therefore, the Board may exercise jurisdiction in future cases involving scholarship collegiate athletes at other universities or in other sports. If it does, it may then provide more clarity regarding such athletes’ and other students’ status as employees under the NLRA. 

Attorneys in Ballard Spahr’s Labor and Employment and Higher Education Groups routinely advise educational institutions on a broad array of labor, employment, and compliance issues. Our attorneys can assist with unionization efforts, employee classification issues, and Title IX compliance. For more information contact, David S. Fryman at 215.864.8105 or, Daniel V. Johns at 215.864.8107 or, Christopher T. Cognato at 215.864.8612 or, or the member of the Group with whom you work.

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