NLRB Unanimously Reverses Order For Union Election By Northwestern Football Players

On August 17, 2015, the National Labor Relations Board ("NLRB" or the "Board") issued its much-anticipated decision in Northwestern University, 362 NLRB No. 167 (Case No. 13-RC-121359), the union representation case involving scholarship members of the Northwestern University football team. In a rare 5-0 decision, the Board on the one hand sacked the petition for union representation by exercising its unreviewable discretion to decline to assert jurisdiction, thereby reversing the Regional Director's order to hold a union election. On the other hand, the Board punted by repeatedly disclaiming that it was deciding the significant statutory issues presented in the case, including whether scholarship student-athletes are or may be university "employees" under the National Labor Relations Act ("NLRA" or the "Act"). The one conclusion reached by the unanimous Board was that "it would not effectuate the policies of the Act to assert jurisdiction in this case, even if we assume, without deciding, that the grant-in-aid scholarship players are employees within the meaning of Section 2(3)." 362 NLRB No. 167, at slip op. 1.

In so holding, the Board explained that even where it has the statutory authority to act, it "'sometimes properly declines to do so, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case.'" Id. at slip op. 3 (quoting NLRB v. Denver Building Trades Council, 341 U.S. 675, 684 (1951)). Here, the Board's decision to decline to exercise jurisdiction was "primarily premised on a finding that, because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction in this case." Id. at slip op. 3. Indeed, the Board noted that in the case of the National Collegiate Athletic Association ("NCAA") Division I Football Bowl Subdivision ("FBS"), in which Northwestern University's football team participates, 108 of the 125 participating universities are public colleges or universities over which the Board cannot assert jurisdiction. Id. slip op. at 5. The Board also emphasized that Northwestern is the only private school competing in the 14 member Big Ten Conference, "and thus the Board cannot...