This week, the National Labor Relations Board (NLRB) rejected a bid to unionize student-athletes who receive grant-in-aid scholarships to play football for Northwestern University. However, the Board did not reach the question of whether the Northwestern football players qualify as employees under the National Labor Relations Act, which was the central question in the case. Instead, the Board declined to assert its jurisdiction over the case, based in large part on the fact that so few college football teams other than Northwestern could qualify as private employers subject to the Act.
In March 2014, the Regional Director of Region 13 of the NLRB issued a Decision and Direction of Election in which he determined that those football players who receive athletic scholarships from Northwestern, a private university, were employees of the university under Section 2(3) of the Act, and that a bargaining unit including all scholarship players was appropriate. Northwestern University, 362 NLRB No. 167 at *1 (Aug. 17, 2015). An election was held on April 25, 2014, and the ballots were impounded pending the Board’s review of the Regional Director’s decision. Id n.1.
The Board issued an invitation to the parties and interested amici curiae to submit briefs, and it received a whopping 22 amici briefs from various groups of universities, labor organizations, and other interested parties. Id. at *1. However, in its unanimous August 17, 2015 decision, the Board declined to assert jurisdiction in the case and chose not to determine whether the scholarship players were statutory employees under the Act. Id. The Board noted that even in cases where it has the statutory authority to take action, “the Board sometimes properly declines to do so, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case.” Id. at *3 (quoting NLRB v. Denver Building Trades Council, 341 U.S. 675, 684 (1951)).
In this case, the Board exercised its discretion not to assert jurisdiction and dismissed the representation petition filed by the union (College Athletes Players Association) on behalf of the scholarship players. Id. at *1, 7. The Board held that asserting jurisdiction would not promote labor stability due to the nature of the National Collegiate Athletic Association (NCAA) and the Big Ten Conference. Id. at *4-6. Of the roughly 125 teams that play football under the NCAA’s Division I Football Bowl Subdivision (FBS), 108 are state-run colleges and universities, over which the Board lacks jurisdiction by statute. Id. at *6. Furthermore, Northwestern is the only private school in the 14-member Big Ten Conference, meaning that the Board could not assert jurisdiction over any of Northwestern’s main competitors. Id. Thus, the Board held, asserting jurisdiction over this one university’s football players would not promote stability in labor relations. Id.
The Board was careful to limit the scope of its decision. It explained that this decision does not concern any other individuals involved with FBS football, such as coaches, employees or referees. Id. Furthermore, the Board declined jurisdiction only over the players in this case and did not preclude reconsideration of the issue in the future, especially if new circumstances arise which compel the Board to revisit its policy. Id.