NLRB General Counsel Advises Northwestern Against Unlawful Rules

On September 22, an associate general counsel for the National Labor Relations Board (NLRB), Barry Kearney, responding in an advice memorandum to regional director Peter Ohr, declared that rules in Northwestern University’s Football Handbook, which restricted players’ social media use and media appearances and prohibited discussion of the athletes’ health, were “unlawful.”

However, Kearney also referred to Northwestern’s scholarship football players as “statutory employees” when concluding that it would not “effectuate the policies and purposes of the NLRA to issue complaint in this case,” as Northwestern has changed the rulebook to allow players more freedom to speak with the media, discuss health issues and post on social media.

The advice memorandum follows on the heels of a March 2014 ruling by the Board’s Regional Director in Chicago, Peter Ohr, who found that Northwestern players receiving football scholarships are employees and have a right to organize under the National Labor Relations Act. Although the NLRB issued a unanimous decision in August 2015 dismissing the representation petition filed by a group of Northwestern football players seeking to unionize, the Board’s decision did not definitively resolve the issue of whether college athletes are employees and have a protected right to unionize under the NLRA. After considering the arguments of both parties in the case and various amici, including CUPA-HR, the Board declined to assert jurisdiction, as doing so would not promote labor market stability “due to the nature and structure of NCAA Division I Football Bowl Subdivision (FBS).”

Following the Board’s decision, labor lawyer David Rosenfeld filed a charge against Northwestern, alleging the school was guilty of “unfair labor practices” and citing the Northwestern team handbook, an exhibit during the 2014 hearing, which he obtained from the NLRB through a Freedom of Information Act request. It is as a result of this charge that Kearney responded with the advice memorandum to Ohr.

The charge in this case was also filed against the National Collegiate Athletic Association (NCAA) as an alleged joint employer of Northwestern’s scholarship football players — Kearney did not address whether or not the NCAA is in fact a joint employer but did state that “given our conclusion that it would not effectuate the policies and purposes of the NLRA to issue complaint in this case, and to therefore dismiss the charge against Northwestern, the charge should also be dismissed against the NCAA.”

Although Kearney’s memo was specific to Northwestern, it remains to be seen if the findings could apply to the 16 other private universities that play in the FBS as well — as the memo does not have the force of law.