National Labor Relations Board Dismisses Northwestern University Football Players’ Petition to be Classified as Employees and Unionize

By R. Joseph Stennis, Jr.

On August 17, 2015, the National Labor Relations Board (“NLRB”) unanimously dismissed a petition by Northwestern University’s football team players to be categorized as “employee(s)” as that term is defined under the National Labor Relations Act (“NLRA”). The NLRB declined to assert jurisdiction over the matter and instead dismissed the representation petition that was successfully filed by the College Athletes Players Association (“CAPA”) last year in which Peter Sung Ohr, NLRB Regional Director of its Chicago Office, ruled that Northwestern football players are employees under the NLRA.

In its decision, the NLRB concluded, among other things, that to assert jurisdiction in this matter would not “effectuate the policies of the Act.” Additionally, due to the structure of the NCAA Division I Football Subdivision (“FBS”) of being primarily comprised of public colleges and universities, the Board ruled jurisdiction “would not promote stability in labor relations…in this case.” By statute, the NLRB does not have jurisdiction over state-run colleges and/or universities, which constitutes 108 of the 125 FBS teams. Northwestern University is the only private school that is a member of the Big Ten Conference, limiting the NLRB’s ability to exercise jurisdiction over its competitors within the conference. The Board recognized that such a scenario was without precedent because

Northwestern Football Players Cast Votes On Union

By R. Joseph Stennis

This morning at Northwestern University’s campus located in Evanston, Illinois, players from the school’s football team cast secret ballots to determine whether to form the nation’s first union for college athletes.  A total of seventy six football players were eligible to vote, but none were required to do so.  It is uncertain at this juncture how many of the seventy six eligible players actually voted.   For those players who did,  a majority of them must have voted in favor of unionizing and allowing the College Athletes Players Association (“CAPA”) to represent them for collective bargaining purposes.  The election stems from a ruling made by the NLRB’s regional director in its Chicago Office, Peter Sung Ohr, last month.   In his ruling, Mr. Ohr concluded that Northwestern University football players  presently on scholarship at the school are “employees” as that term is defined under the National Labor Relations Act and federal common law, and could therefore conduct elections to determine whether or not they want to be represented by CAPA.

Earlier this month, Northwestern appealed Mr. Ohr’s decision to the NLRB in Washington, D.C.  Yesterday, the Board granted Northwestern’s request for review and has ordereed that the ballots from today’s vote be impounded until it reaches a decision.  In its request, Northwestern is seeking a reversal of Mr. Ohr’s decision.  We will not know whether the players voted to unionize or not until and if the Board issues a decision approving the Regional Directors’ ruling that allowed the election to take place.  So, although today’s vote by Northwestern’s players was a historic moment for private college student-athletes, whether they ultimately will—or have the ability to— unionize is still very much uncertain.

NLRB Regional Director Rules Northwestern University Football Players Have the Right to Unionize

By R. Joseph Stennis

Yesterday afternoon the Director of the NLRB’s regional office located in Chicago, Illinois ruled in a landmark decision that Northwestern University football players presently on scholarship at the school are an “employee” as that term is defined under the National Labor Relations Act (“NLRA”) and federal common law. As a result, the Director’s decision

Crossroads in College Sports: Northwestern University Football Players’ Attempt to Unionize Could be a Real “Game Changer”

By R. Joseph Stennis

Are student-athletes employees of a university or instead just amateur athletes who play sports for their schools?  This is the question put forth by a  group of current Northwestern University football players who recently announced via representatives their intent to unionize and be recognized as employees under federal labor law.  On January 28, 2014, Ramogi Huma, president of the college athlete advocacy group National College Players Association, filed a petition with the Chicago Regional Office of the National Labor Relations Board (“NLRB”) on behalf of the players requesting to be certified as a union.  If certified by the NLRB, the group of players would be called the College Athletes Players Association (“CAPA”).  CAPA was organized by former Northwestern University quarterback Kain Colter, former University of Massachusetts basketball player Luke Bonner, and Mr. Huma.  CAPA was created with the support from the United Steelworkers Union as well.

The response of the NCAA, Northwestern University and Big Ten Conference was essentially that student-athletes are not employees of the university.  In particular, the NCAA’s chief legal officer Donald Remy stated, “This union-backed attempt to turn student-athletes into employees undermines the purpose of college:  an education.  Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act.  We are confident the [NLRB] will find…there is no right to organize student-athletes.”

The NLRB’s Chicago Regional Office is expected to hold a hearing on this matter on February 7, 2014.  If the NLRB’s Regional Director finds that the athletes are employees as defined in the National Labor Relations Act, he will order a secret ballet election.  If he makes a finding that the athletes are not employees, he will dismiss the petition.  The Regional Director’s decision—either way—will likely be appealed.