NLRB Blocks Northwestern Football Union Petition

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Lawrence E. Dubé

Aug. 17 — The National Labor Relations Board Aug. 17 unanimously dismissed a union's petition to represent football players at Northwestern University, ending a yearlong effort by the College Athletes Players Association that attracted national attention and sparked a vigorous debate about the legal rights of college athletes.

An NLRB regional director in Chicago ruled in March 2014 the university's scholarship athletes were employees under the National Labor Relations Act who could vote on unionization in a secret-ballot election. However, the board's five members decided to dismiss the election case, concluding it “would not effectuate the purposes” of the act for the NLRB to assert jurisdiction. The board cited the control exercised by the National Collegiate Athletic Association and the NLRB's inability to exercise jurisdiction over the public entities that dominate the Big Ten conference.

NLRB Chairman Mark Gaston Pearce and Members Philip A. Miscimarra, Kent Y. Hirozawa, Harry I. Johnson and Lauren McFerran all joined in the ruling, observing the board had never before been asked to assert jurisdiction in a case involving college athletes of any kind.

Without determining whether the football players are employees under the NLRA, the board said it would be difficult for CAPA to bargain with Northwestern about standards set by athletic conferences and organizations. Collective bargaining under those circumstances would not promote uniformity and stability in labor relations, the board said in dismissing the case.

University Says Union Not ‘Appropriate' for Students

Northwestern's vice president for university relations, Alan K. Cubbage, said in a statement: “We applaud our players for bringing national attention to these important issues, but we believe strongly that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes. We are pleased that the NLRB has agreed with the University’s position.”

Cubbage added: “We are committed to ensuring their health, safety and well-being and that they are provided with every resource possible to grow and develop as well-rounded individuals. We now need to examine these issues nationally to ensure that student-athletes nationally are provided the same opportunities as those at Northwestern.”

Head football coach Pat Fitzgerald said: “They have displayed maturity beyond their years through this process, and the experience has unquestionably brought us closer together as a football family. This group posted the highest cumulative GPA in program history during the 2014-15 academic year, earned a record 38 Academic All-Big Ten honors last season and is excited to return to the field this fall to play the game they love and compete for a Big Ten championship.”

CAPA did not immediately respond to a request for comment on the NLRB ruling.

Regional Director Ordered Representation Election

Acting on an election petition filed by CAPA, NLRB Regional Director Peter Sung Ohr found that Northwestern awarded scholarships of more than $60,000 per year to some 85 students in a Big Ten program that generated more than $230 million in revenue for Northwestern between 2003 and 2012.

Ohr found the scholarship players satisfied the common law test of employment and were employees under Section 2(3) of the NLRA who had a right to vote on union representation. Ohr stressed the university derives a substantial benefit from the effort of the football players, and the players have been receiving “compensation” even if it was not treated by Northwestern as taxable income.

The regional director supervised an April 25, 2014, election in a unit of approximately 85 scholarship players. Northwestern requested board review of the election decision, and the player ballots were impounded pending a board decision in the representation case.

Vigorous Dispute Over ‘Employee' Status

CAPA argued during the NLRB proceeding that the scholarship athletes received “payment for services, consistent with employee status” under the NLRA.

Arguing that a common law test of employee status should be applied to the athletes, the labor organization stressed the control the university and its athletic program exercise over the football players.

Northwestern argued that in cases involving educational institutions, the board has applied its decision in Brown University, 342 N.L.R.B. 483, 175 LRRM 1089 (2004), in which the board found that a university's graduate teaching assistants were “predominantly students” and were not employees under the NLRA.

Calling the “overall relationship” between Northwestern and its football players “primarily educational, not economic,” the university asked the board to dismiss the union petition.

The NLRB said the parties and more than 100 organizations that filed amicus briefs in the case focused on the dispute over whether the football players were employees under the NLRA, but the board avoided ruling on that issue.

NLRB Declines to Take Jurisdiction

Instead, the board said it would not “effectuate the policies of the Act to assert jurisdiction in this case, even if we assume, without deciding, that the grant-in-aid scholarship players are employees within the meaning of Section 2(3).”

The NLRB has declined to assert jurisdiction in other cases in which it had statutory authority to do so, and the board members said the Northwestern football dispute was a situation where that was appropriate.

“Given the absence of any controlling precedent, we find it appropriate to consider whether the Board should exercise its discretion to decline to assert jurisdiction in this case, even assuming the Board is otherwise authorized to act,” the unanimous board said

Observing that “[t]here has never been a petition for representation before the Board in a unit of a single college team or, for that matter, a group of college teams,” the board said it had no controlling precedent to apply to the case. The football players “do not fit into any analytical framework that the Board has used in cases involving other types of athletes,” it said.

The NLRB had invited amicus briefs on whether it should “adhere to, modify, or overrule,” Brown, but it decided not to express any opinion on whether Brown was relevant to resolving the employee issue at Northwestern.

Bargaining Limited by Outside Controls

The board said its decision to dismiss the CAPA petition was “primarily premised on a finding that, because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS [NCAA Division I Football Bowl Subdivision] football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction in this case.”

The NLRB said that unlike employers in other industries that control their own products and labor relations, schools like Northwestern that participate in intercollegiate athletics have given the NCAA authority to establish and enforce rules on a range of subjects, including player eligibility, practice hours and competition.

Because of the control exercised by the NCAA and athletic conferences, “labor issues directly involving an individual team and its players would also affect the NCAA, the Big Ten, and the other member institutions,” the board said.

'Asymmetry' in Regulation of Schools Cited

The board pointed out that of approximately 125 schools participating in FBS football, all but 17 are public institutions that are outside the jurisdiction of the NLRB.

In the Big Ten conference, Northwestern is the only private institution, meaning the board cannot assert jurisdiction over any of the university's competitors.

Stating the mix of public and private competitors results in “an inherent asymmetry of the labor relations regulatory regimes applicable to individual teams,” the board said it would not promote stability in labor relations by taking jurisdiction over Northwestern when “the Board cannot regulate most FBS teams.”

Ruling Limited, Could Be Revisited in Future

The board cautioned that “we are declining jurisdiction only in this case involving the football players at Northwestern University.”

“[I]n the absence of any evidence concerning the players and athletes at other schools,” the board wrote, “we do not decide any issues about them today.”

The board members said they were not addressing what the NLRB's approach might be if a labor organization filed a petition for all FBS scholarship football players at private colleges and universities, and they said their view of the board's jurisdiction might change in the future.

Observing that NCAA action or other changes in the treatment of college athletes “could outweigh the considerations that motivate our decision today,” the board warned that its dismissal of the Northwestern petition “does not preclude a reconsideration of this issue in the future.”

Immediate Reaction Divided

Sen. Lamar Alexander (R-Tenn.), chairman of the Senate Committee on Health, Education, Labor and Pensions, issued a statement shortly after the NLRB decision, saying the board “made the right decision for student athletes in this case.”

However, Alexander said the agency “has done student athletes and all students no favor by leaving the question open for the future.” He said university and college students “should be free to focus on earning college degrees, not fending off union organizers looking to increase union dues collections.”

Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, issued a statement calling the NLRB ruling “a welcome decision and one that puts the interests of students above those of Big Labor.”

“I am pleased cooler heads prevailed in this case and hope this is the final word on this misguided idea,” he said.

Rep. Jan Schakowsky (D-Ill.), whose district includes Northwestern's main campus, said she is disappointed by the board ruling.

“Northwestern is one of the best universities in the nation, and its players benefit from tremendous opportunities inside and outside the classroom and in life after football, but the demands these players have made are reasonable and modest, and they have been denied an opportunity to form a union,” Schakowsky said in a statement provided to Bloomberg BNA.

Schakowsky said CAPA's organizing effort at Northwestern “has played a major role in moving college athletics in the right direction.”

“I am sorry that the NLRB has decided against college athletes seeking a seat at the table, and I look forward to further efforts that would allow players the right to bargain collectively,” the Illinois representative said.

The United Steelworkers, which provided legal aid to the Northwestern players, issued a statement expressing its commitment to supporting such efforts.

“Maybe it won't happen in 2015,” International President Leo W. Gerard said in the union's statement. “But before today's athletes send their children to college, every college scholarship football player and every college scholarship basketball player will be a proud union member and no longer exploited on their jobs.”

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at