Northwestern Ducks Labor Ruling on Football Players

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By Lawrence E. Dubé

Oct. 11 — Northwestern University will not face unfair labor practice proceedings for imposing unlawful rules on its football players, the NLRB’s general counsel ruled ( Northwestern Univ. , NLRB Div. of Advice, No. Case 13-CA-157467, 9/22/16 [released 10/7/16]).

The general counsel’s rejection of an unfair labor practice charge against the university ended a possible test case on the rights of scholarship athletes at private universities.

The National Labor Relations Board decided in 2015 to block unionization of Northwestern’s football players (362 N.L.R.B. No. 167, 204 LRRM 1001 (2015)).

However, the board based its 5-0 decision on findings that certifying a union for the college football players would not promote stable bargaining relationships under the National Labor Relations Act. The board members did not decide whether student athletes are employees under the NLRA.

The NLRB’s Division of Advice assumed in a memorandum released Oct. 7 that the Northwestern football players are employees. It concluded that Northwestern’s social media policy and other rules interfered with their rights to discuss workplace issues. However, the NLRB unit wrote that it would not be appropriate to issue an unfair labor practice complaint because Northwestern has already revised its rules to conform to the NLRA.

University Rules Were Overbroad, Unlawful

According to the advice memorandum, a football player’s handbook and a student athlete rule precluded Northwestern athletes from using social media for comments that could embarrass the university.

Other rules required student athletes to “keep our information private” and forbade them from giving interviews unless they were arranged through a university office. The interview rule required employees to be “positive when talking about your teammates, coaches and team.”

The board and the general counsel have said work rules and policies are unlawful if employees would reasonably interpret them to limit the workers from participating in union activity or concerted activity for their mutual aid or protection.

Corrective Action Avoided Action by NLRB

Writing for the Division of Advice, Association General Counsel Barry J. Kearney said Northwestern deleted or modified the unlawful language.

Northwestern also eliminated a dispute resolution procedure that Kearney said would reasonably be construed as prohibiting football players from discussing workplace grievances with fellow athletes or third parties.

Kearney wrote in the unfair labor practice case that the general counsel “assume[d], for purposes of this memorandum,” the football players are employees, but found that in light of the university’s policy revisions, “it would not effectuate the policies and purposes of the NLRA to issue complaint in this case.”

The unfair labor practice case was withdrawn on Sept. 28.

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

To contact the editor responsible for this story: Peggy Aulino at

For More Information

Text of the NLRB advice memorandum is available at

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