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Friday Double Take: Northwestern University Files Its NLRB Appeal

April 11, 2014

By Michael G. McClory

Two weeks ago, in a Bullard Alert, we addressed the surprising decision, issued by Region 13 of the National Labor Relations Board in Chicago, that scholarship students playing on the Northwestern University football team are employees within the definition of the National Labor Relations Act.  That conclusion is outrageous and disingenuous (in a “kabuki theater meets Punk’d” kind of way). 

Where Do Things Stand?

The Regional Director ordered “an immediate election” in this case.  Consistent with that directive, the NLRB has set April 25, 2014 as the date on which Northwestern University scholarship students who play football will vote on whether they want to be represented by the (so-called) College Athletes Players Association.

Additionally, on Wednesday Northwestern University filed an appeal to the NLRB’s ruling.  The argument advanced in the brief is summarized on page 1 as follows:

“In this unprecedented decision, the Regional Director set out to alter the underlying premise upon which collegiate varsity sports is based. By finding that Northwestern University’s football program is a commercial enterprise and that its football scholarship student-athletes are ‘employees’ within the meaning of the National Labor Relations Act (‘Act’), the Regional Director ignored the evidence of Northwestern’s primary commitment to the education of all of its student-athletes, evidence that fully supports that its student-athletes are primarily students, and not employees. Based on the testimony of a single player who admitted that he aspires to play professional football, the Regional Director described Northwestern’s football program in a way that is unrecognizable from the evidence actually produced at the hearing.”

CAPA, the putative union, has the right to file an opposition to the appeal.  If the NLRB grants review it is possible that the election would be delayed pending resolution of the appeal.  It also is possible that the NLRB would allow the election to proceed on the scheduled date, but keep the ballots secret pending resolution of the appeal.

Why Northwestern University?

One of the aspects of this matter that seems perplexing is why Northwestern University is the test case for asserting that football playing students are not adequately student-like.  Indeed, Northwestern University’s appeal compellingly refutes the assertion that its focus is not on education.

“The remarkable 97% graduation rate for student-athletes in Northwestern’s football program—the highest FBS graduation rate in the country—is not something that should merely ‘be noted’ in passing, as the Regional Director did, but instead demonstrates the emphasis that Northwestern places on the academic success of its student-athletes. (Compare DDE at 13 with Tr. 500-01, 912-13, 1025.) Likewise, the fact that Northwestern’s football student-athletes consistently maintain an exceptional cumulative GPA average of over 3.00 is telling of Northwestern’s focus on its student-athletes as students. (Tr. 499, 1025.)”

In light of this evidence, one has to wonder why the NLRB would pick on Northwestern University rather than a school where attention to academics is less of a priority.  (I am not going to name names, but will provide a partial list of graduation rates.)  I believe that Northwestern University’s success in the classroom is actually the reason why it is considered a good test case.  Had the Regional Director’s decision involved a lesser academic institution the decision would be open to criticism (e.g., on the grounds that it was aberrational and should be discounted because it concerned a school and program that has broken faith with its academic duty).  I believe that the NLRB believes its position is more defensible because it involves Northwestern University.

We will continue to follow this case as it moves forward.

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Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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