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NLRB Punts: Dismisses Northwestern University Football Representation Case

August 17, 2015

By Michael G. McClory

Ahead of the opening kickoff for the 2015 college football season, the National Labor Relations Board has punted.  The Board dismissed a petition related to efforts to unionize the Northwestern University football team.  The dismissal, though, ducked the most contested aspect of the matter: whether scholarship students playing on the Northwestern University football team are statutory employees within the meaning of Section 2(3) of the National Labor Relations Act. 

As previously detailed by The Bullard Edge and Bullard Alert, the College Athletes Players Association, a group affiliated with the United Steelworker Union, filed a representation petition with the Region 13 Director in Chicago.  CAPA was attempting to become the elected bargaining representative for scholarship students playing on the Northwestern University football team.  That effort bogged down on the most fundamental question: whether these students were or were not employees.

The Regional Director controversially concluded that scholarship students were in fact football employees and ordered an immediate election on CAPA’s representation bid.  Northwestern University appealed.  Although an election did take place, the ballots were kept secret pending resolution of the appeal.

The Board’s decision today will keep those ballots forever sealed.  Rather than wade into the maelstrom that would follow a conclusion that scholarship students were football employees under Section 2(3) of the NLRA, the “Board exercised its discretion not to assert jurisdiction and dismissed the representation petition filed by the union.”

In a press release earlier today the Board explained itself as follows.
 
“In the decision, the Board held that asserting jurisdiction would not promote labor stability due to the nature and structure of NCAA Division I Football Bowl Subdivision (FBS). By statute the Board does not have jurisdiction over state-run colleges and universities, which constitute 108 of the roughly 125 FBS teams. In addition, every school in the Big Ten, except Northwestern, is a state-run institution.  As the NCAA and conference maintain substantial control over individual teams, the Board held that asserting jurisdiction over a single team would not promote stability in labor relations across the league.”
 
With this scholarship-student-as-employee issue knocked out of bounds (for now), there is hope that educational institutions will be freer to address some of the real issues in intercollegiate athletics that need to be addressed.  Two that come instantly to mind are: (1) concussions and other injuries; and (2) the school-to-school mobility of scholarship students (particularly as compared to their coaches).  Hopefully, with this, these types of issues will now get more attention.

 
The Bullard Edge
 

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About the Editor

Be informed, engaged and sometimes entertained

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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