More than a year ago, a group of Northwestern University football players took the unprecedented step of filing a Petition to form a union, and until today there still was no answer to the legal question of whether or not they could. Northwestern had argued that the players were not “employees” as that term is defined by the National Labor Relations Act, which is the law that gives private sector employees the right to form, join and assist labor unions.
In March, the NLRB Regional Director ruled that they in fact were employees, and he ordered an election among the team members. Those ballots from that election, held this spring, have been sealed while the University appealed the determination that the students were in fact employees.
The full NLRB unanimously ended the matter today, though, but not by answering the question of whether the students are employees. Instead, to borrow a football concept, they punted. The Board dismissed the Petition by concluding that the NLRB had no jurisdiction over this Petition.
The statute does not give the NLRB any jurisdiction over public employers, including public (and state-related) universities. According to the NLRB, 108 of the nation’s roughly 125 Football Bowl Subdivision colleges and universities are public and therefore outside the NLRB’s jurisdiction, and in fact all other schools in the Big Ten are state affiliated schools.
The NLRB noted that many of the matters that likely would be the subject of collective bargaining are also the subject of NCAA and conference policies, and the NLRB would not have jurisdiction over those policies as applied to the vast majority of other schools. The difficulty that could come, then, from the NLRB exercising jurisdiction over issues that also are governed by NCAA and conference policy, without any jurisdiction over the overwhelming majority of schools with which Northwestern finds itself aligned, would not promote the kind of stability in labor relations that the law and the NLRB are designed to promote.
By dismissing the case due to a lack of jurisdiction, the NLRB did not answer the question of whether or not student athletes are employees under the National Labor Relations Act, so that question remains for another day. Still, this represents a significant victory for Northwestern.