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NLRB to Review Northwestern Decision

In a much publicized decision, the Regional Director of the National Labor Relations Board ("Board") for the Illinois area recently ruled that Northwestern University football players are "employees" within the meaning of that term under the National Labor Relations Act. Therefore, the petition for a union election filed by the players could be processed and an election scheduled. The election is set for April 25, 2014.

On April 24, 2014, the Board in Washington granted Northwestern University's petition for review of the Regional Director's decision, finding that it raised issues worthy of serious consideration. The election will take place but the ballots will be impounded and not counted until the Board issues a decision affirming or reversing the Regional Director's decision. Meanwhile, the Board will soon issue another order that sets a briefing schedule and invites amicus briefs, which are legal briefs by interested persons who are not parties to the action.

It will be interesting to observe whether the Board ultimately takes the position that scholarship athletes at private Division I universities are employees and may elect union representation. Taking that step would be politically sensitive, and would raise a variety of legal issues such as the scope of the NCAA's ability to govern and the extent to which, if any, that a collective bargaining agreement could contravene or blunt usual NCAA rules. In addition, since the ruling would apply only to private universities, a host of questions would be raised with regard to treatment of public universities. The Board can sidestep all these issues by reversing the Regional Director and finding that the players are not employees. All things considered, that appears a likely result.

Meanwhile, as a practical matter the players' action in seeking union representation has raised issues about their treatment by universities, as well as about restrictive NCAA rules. This action, in combination with recent revelations that some athletes have frequently gone to bed hungry in spite of their scholarship status, may spur the NCAA to make changes for the good of the student athletes and the college playing field as a whole. We certainly hope so.

At the end of the day, will the players vote for union representation? We may never know because if the Board rules that the players are not employees, there would be no legal reason to count the ballots. Our best guess, however, is that it seems unlikely that a majority of the seventy plus football players would take the step of seeking representation.


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