Law & Courts

NLRB Rejects Northwestern Football Players’ Attempt to Unionize

By Bryan Toporek — August 18, 2015 4 min read
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The National Labor Relations Board unanimously declined jurisdiction Monday in the case involving Northwestern University football players attempting to unionize, reversing a historic ruling last year from a regional director who declared scholarship players to be school employees.

In the original March 2014 decision, Peter Sung Ohr, the regional director for the NLRB’s Region 13, determined that “the scholarships the players receive is compensation for the athletic services they perform.” His ruling paved the way for Northwestern football players who were currently under scholarship and hadn’t yet exhausted their athletic eligibility to form a union at their discretion.

Following the initial ruling, Northwestern vice president for university relations Alan K. Cubbage voiced the university’s disagreement, saying in a statement, “Northwestern believes strongly that our student-athletes are not employees, but students.” In early July, Northwestern made the same argument in asking the full NLRB to overturn the decision.

Rather than weighing in on whether the original decision regarding student-athletes being university employees should stand, the full NLRB instead “exercised its discretion not to assert jurisdiction and dismissed the representation petition filed by the union.” The NLRB cited the unique structure of Football Bowl Subdivision football, “in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction,” as a major reason why it refused to rule on whether Northwestern’s football players should be considered university employees.

If the board took the side of its regional director, it “would not promote stability in labor relations,” it said in its decision. It noted that because all but 17 of the roughly 125 colleges and universities that participate in FBS football are state-run institutions, “the Board cannot assert jurisdiction over the vast majority of FBS teams because they are not operated by employers.’”

The board did note, however, that its decision to not assert jurisdiction applied strictly to this case involving Northwestern football players, not to a theoretical petition for all FBS scholarship players. It also said the decision “does not preclude a reconsideration of this issue in the future,” particularly “if the circumstances of Northwestern’s players or FBS football change such that the underpinnings of our conclusions regarding jurisdiction warrant reassessment.”

Reaction Mixed

Both Northwestern and the National Collegiate Athletic Association applauded the NLRB’s latest move. Speaking on behalf of Northwestern, Cubbage said in a statement:

As the University has stated previously, Northwestern considers its students who participate in NCAA Division I sports, including those who receive athletic scholarships, to be students, first and foremost. We applaud our players for bringing national attention to these important issues, but we believe strongly that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes. We are pleased that the NLRB has agreed with the university's position.

The NCAA likewise expressed its support, saying, via chief legal officer Donald Remy, “This ruling allows us to continue to make progress for the college athlete without risking the instability to college sports that the NLRB recognized might occur under the labor petition.”

Former Northwestern quarterback Kain Colter, who helped lead the attempt to unionize alongside the College Athletes Players Association, told’s Tom Farrey that despite the setback, the movement helped usher in significant reforms.

“It’s definitely not a loss,” he said. “Since we started this movement, a lot of positive changes have come from this—the introduction of four-year scholarships, increased stipends, maybe better medical coverage, the lifting of food restrictions. A lot of the things that we’ve been fighting for have been adopted. But there is a lot of room to go.”

In August 2014, for instance, the NCAA granted voting autonomy to its “Big Five” conferences in certain areas of Division I rulemaking, a major shift in its governance structure. Student-athlete and faculty representatives from those 65 schools voted 79-1 in January to expand the scope of scholarships for NCAA athletes, allowing such pacts to cover “expenses such as academic-related supplies, transportation, and other similar items.” The association also introduced a pilot program in January that will help cover expenses for players’ families to travel to the men’s and women’s Final Four basketball tournaments and granted a waiver to the College Football Playoff to do the same.

The push to unionize also caught the attention of three members of a U.S. Senate committee last spring. Claire McCaskill (D-Mo.), Jay Rockefeller (D-W.V.), and Cory Booker (D-N.J.) sent a letter to NCAA president Mark Emmert expressing concerns about the association’s ability to protect student-athletes from exploitation. They specifically address the NLRB’s original ruling, saying, “If the NCAA were accomplishing its mission of protecting student-athletes from exploitative practices, those efforts would be unnecessary and likely unsuccessful.”

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A version of this news article first appeared in the Schooled in Sports blog.