The NLRB Invites Comments Before Reaching a Final Decision on Whether to Grant Northwestern University Football Players the Right to Unionize

On March 26, 2014, Peter Sung Ohr, the National Labor Relations Board’s (“NLRB”) Regional Director in Chicago, ruled that football players at Northwestern University were properly classified as employees of the University and, therefore, had the right to unionize.  This decision immediately received national attention, as colleges and universities scrambled to determine the potential effects of allowing student-athletes to attempt to unionize.  The decision is being watched closely by almost all private colleges and universities across the country (public universities are unlikely to fall within the scope of the decision as currently stated).

Proponents of the unionization of college athletes seek to obtain medical insurance coverage for injured athletes and to prevent colleges and universities from being able to revoke a student’s scholarship if he/she is injured while competing on behalf of the college or university.  It is possible that unionization may also lead to college athletes receiving some level of compensation beyond room and board typically associated with a scholarship.  Opponents of unionization claim that this will drive up college costs further and could lead to a restriction on athletic programs and/or scholarships.

Northwestern University quickly appealed the decision and challenged the methodology and reasoning used by Mr. Ohr in reaching his conclusions.  On April 24, 2014, the NLRB granted Northwestern University’s request for a review of Mr. Ohr’s decision because “it raised substantial issues warranting review.”  On April 25, 2014, Northwestern University football players conducted a vote on unionization via a secret ballot.  The results of the vote have not been released and likely will not be made public pending the NLRB's review of Mr. Ohr's earlier decision.

On May 12, 2014, the NLRB invited interested parties to submit briefs to address issues related to whether student-athletes are properly classified as employees of their respective colleges and universities.  The NLRB welcomed comments on several items, including the following:

1. What test should be applied when determining whether student-athletes are properly classified as “employees” of a college or university;
2. What policy considerations are relevant when evaluating whether student-athletes are properly classified as “employees” of a college or university; and
3. To what extent do other federal and state statutes address and/or affect this issue.

A copy of the invitation for briefs may be found here -- http://www.nlrb.gov/news-outreach/news-story/nlrb-invites-briefs-issues-northwestern-university-athletes-case.  It is anticipated that many leading labor organizations will submit briefs in connection with this decision.  Briefs must be filed by June 26, 2014.

The NLRB’s actions over the next several months will continue to draw intense scrutiny.  Please stay tuned to Law in the Workplace, as we will update date you as this matter develops further.

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