On August 17, 2015, the National Labor Relations Board (NLRB) declined to exercise jurisdiction over the College Athletes Players Association’s (CAPA’s) petition to allow football players at Northwestern University to form a union. The organizing players sought guaranteed coverage of sports-related medical expenses for former and current athletes, sponsorship compensation, and the establishment of a trust fund to assist former players in completing their degrees. In March of 2014, the NLRB Regional Director for Region 13 found Northwestern University to be an “employer” engaged in commerce within the meaning of the National Labor Relations Act (NLRA) and further found the student-athletes to be “employees” under the NLRA. The Regional Director determined that the NLRB possessed jurisdiction and directed the players to hold a certification election, which was held April 25, 2014. The April 25th election results were impounded pending Northwestern University’s appeal to the NLRB. The results will now be destroyed based upon the NLRB’s decision to deny jurisdiction.
The NLRB did not base its decision on NLRA eligibility issues. In the ten years preceding the Players’ petition for election, Northwestern University’s Football Program generated $77 million in excess of its operating expenses. The Players grant-in-aid scholarships carry $61,000 in value and subject the players to the NCAA and Big Ten’s amateur-athlete status restrictions. The NLRB noted that Northwestern University was an employer engaged in commerce for purposes of the Act but side-stepped a closely watched bombshell issue – whether student-athletes receiving grant-in-aid scholarships qualify as “employees.” Instead, the NLRB declined jurisdiction because “asserting jurisdiction would not serve to promote stability in labor relations.”
The Board relied on NLRB v. Denver Building Trades Council, 341 U.S. 675 (1951), emphasizing that it has authority to decline to exercise jurisdiction over otherwise statutorily-eligible parties when it believes that declining jurisdiction would better effectuate the purposes of the NLRA. Asserting jurisdiction over one college football team’s players (while omitting all others) would render it difficult for the NCAA and Big Ten to set uniform standards, rules, and goals for student-athlete participation, thus creating instability in the area of college athletics. Out of the roughly 125 colleges and universities that participate in the NCAA’s Football Bowl Subdivision, only 17 are private Universities. And of the 14 universities in the Big Ten, Northwestern is the only private school. State employers are not “employers” under Section 2(2) of the NLRA; rather, state employers are governed by state labor law. Many states do not allow (or greatly curtail) public sector employees’ ability to unionize. Indeed, here in Ohio, university football players are explicitly not “employees” under Section 3345.56 of the Ohio Revised Code.
The Board suggested that it may assert jurisdiction in the future if the terms and subsequent treatment of scholarship players worsen or motivate other athletes at private universities to seek union representation. The NLRB also made clear that its decision only applies to the facts and circumstances of the petition filed by the players at Northwestern, and it may decide jurisdiction differently should, for example, the football players from all private universities petition the Board for representation.