The NLRB Avoids Making a Decision Regarding Student Athletes


By: Megan J. Muoio, August 26, 2015

On August 17, 2015, the National Labor Relations Board issued a decision reversing the March 26, 2014 decision of NLRB Regional Director Peter Sung Ohr, which found that Northwestern University scholarship football players are employees as defined by the National Labor Relations Act. Eighteen months after the decision by the Regional Director, the NLRB dealt a blow to the Northwestern players’ quest to unionize and be recognized as employees under the National Labor Relations Act.

Northwestern University is one of 17 private schools within the NCAA Division I Football Bowl Subdivision, and the only private institution in the Big Ten Conference. The players sought recognition as employees under the NLRA and the right to collectively bargain in order to address issues such as increased scholarships, coverage for sport-related medical expenses, traumatic brain injury prevention, and assistance improving graduation rates. The athletes sought recognition as employees along with other university constituencies – graduate assistants, student janitors, and cafeteria workers, all who have successfully sought employee status under the NLRA in recent years. Upon recognizing the student athletes as employees, the NLRB Regional Director ordered an election to take place. The election was held but the ballots were sealed pending the decision of the full board.

However, the NLRB’s decision indicates that student athletes are different from other university groups because they receive scholarships to participate in extracurricular activities. Student athletes are also different from professional athletes, who are recognized as employees by the NLRB, because they are subject to both academic regulations as students and NCAA and athletic conference regulations as athletes.

In the end, the NLRB found that it did not need to determine whether the Northwestern scholarship athletes were employees within the NLRA because policy considerations demanded that the NLRB decline jurisdiction over the matter entirely. The NLRB held that considering the issue of whether the players were employees did not “promote stability in labor relations.” The fact that students from a single team sought recognition, rather than all teams in a league as in the case of professional athletes, required the NLRB to stay its hand. Even if all student athletes within a particular league were to petition for union recognition, the NLRB would be hesitant to consider the issue because it would only be able to exercise its jurisdiction over those student athletes at private universities. Student athletes at public universities would remain subject to their respective state labor laws, which would result in a patchwork of regulations governing student athletes league-wide.

Despite the fact that the NLRB’s decision ended the Northwestern University student athlete’s quest for unionization, student athletes nationwide are continuing to press for reforms and improved conditions from the NCAA. Already, the NCAA has changed its policies to require four-year guaranteed scholarships instead of one-year renewable scholarships, which provides student athletes increased protection if they are injured during the course of their college career. Although the student athletes fell short of their goal before the NLRB, student athletes have been working on other fronts to change their conditions. For example, student athletes have pursued litigation in California under federal antitrust law to end the NCAA’s monopoly regarding the use of student athletes’ names and likenesses, and are seeking to expand possible sources of compensation for student athletes under the NCAA.


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