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As sports fans may recall, in January 2014, scholarship football players at Northwestern University filed a petition with the National Labor Relations Board (“NLRB” or “Board”) seeking representation by a labor union. The players asserted that the University-provided scholarships and the team’s control over them made them “employees” of the University entitling them to vote for union representation.  While many scoffed at the idea that student-athletes could be employees, after a three-week hearing the NLRB’s regional director in Chicago affirmed a finding that Northwestern’s football players were employees and, as a result, were eligible to vote in an election for union representation.    

Northwestern, of course, appealed that decision to the full five member Board in Washington D.C. In a unanimous decision issued on August 17, 2015, the NLRB declined to assert jurisdiction in the case. Rather than make a decision regarding the status of the scholarship athletes as employees, the NLRB exercised its discretion not to assert jurisdiction— which essentially means it decided not to take charge of the case--and dismissed the union’s petition to represent the student-athletes as employees of the University. 

How did the NLRB manage such an evasive play?  

In its narrowly-crafted decision, the NLRB recognized that in some circumstances, even where it can address the merits of a case, the law allows the Board not to because doing so would not promote stability in labor relations. That’s just the situation here said the Board because of the nature and structure of the NCAA Division I Football. In support of that conclusion, the Board noted that it does not have jurisdiction over the public colleges and universities that make up more than 85 percent of the NCAA Division I Football program.  In addition, every school in the Big Ten, except Northwestern, is a public school.   As a result, the NLRB held that asserting jurisdiction over a single team at a private school, like Northwestern, would not promote stability in labor relations across the league. 

But, the NLRB was not willing to concede its future right to find that college football players might be employees entitled to union representation.The NLRB noted that its decision is narrowly focused to apply only to the scholarship players at Northwestern in this particular case. The Board specifically stated the decision does not preclude reconsideration of this issue in the future. 

In other words, while the Board punted on this one, it might choose to run with it next time. 
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