Northwestern University’s football players, who receive grant-in-aid scholarships, claimed that they were “employees” within the meaning of Section 2(3) of the National Labor Relations Act (the “Act”) and petitioned for a unit election. The National Labor Relations Board’s (the “Board”) regional director agreed that the grant-in-aid scholarship players were employees and directed an election. The Board granted Northwestern’s request to review the regional director’s decision. On review, the Board sided with the university and dismissed the football players’ petition.
In its decision, the Board noted that if the players were not statutory employees, then the Board lacked authority to direct an election or certify a representative. However, even when the Board has the statutory authority to act (which it would in this case, were it to find that the scholarship players were statutory employees) “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.” The Board concluded that this case presented such a situation, and held that it would not effectuate the policies of the Act to assert jurisdiction. Importantly, the Board reached its decision without deciding the issue of whether or not the Northwestern football players were statutory employees under the Act.
The Board noted that this was a unique case, as it was a single team (Northwestern’s football players) seeking certification as a union. In contrast, the Board observed that all previous Board decisions concerning professional sports involved league-wide bargaining units. The Board stated that “it would be difficult to imagine any degree of stability in labor relations” if it were to assert jurisdiction in this single-team case.
Furthermore, critical to the Board’s reasoning is the fact that Northwestern University is a private institution. Of the roughly 125 colleges and universities that Northwestern competes with in the Football Bowl Subdivision (“FBS”), all but 17 are state-run institutions. As a result, the Board could not assert jurisdiction over the vast majority of FBS teams because they are not operated by “employers” within the meaning of Section 2(2) of the Act. Moreover, Northwestern is the only private school that is a member of the Big Ten Conference, and thus the Board could not assert jurisdiction over any of Northwestern’s primary competitors. As such, the Board found that this case presented a situation without precedent because in all of the Board’s past cases involving professional sports, the Board was able to regulate all (or at least most) of the teams in the relevant league or association.
In light of the foregoing, the Board concluded that even if the scholarship football players were statutory employees (which the Board did not decide), asserting jurisdiction in this case would not promote stability in labor relations. Accordingly, the Board dismissed the Northwestern University football players’ petition. The Board cautioned, however, that its decision was limited to Northwestern’s scholarship football players and did not address what the Board’s approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities). Lastly, the Board stated that its decision not to assert jurisdiction did not preclude a reconsideration of this issue in the future. But for now, it looks like Northwestern Football players have lost their battle to achieve union status.