The Regional Director for the Chicago office of the NLRB issued a decision this week finding that football players receiving scholarships at Northwestern University constituted an appropriate unit for purposes of collective bargaining under the NLRA. From my perspective, the decision is flawed in many ways, most importantly from a public policy standpoint. But even from a legal standpoint, it makes no sense. In essence, the NLRB, through this decision, is endorsing a total change in the makeup of student athletes in every private sector college or university in the United States. Such action is beyond the scope of “the purposes and policies of the Act.” There is already a regulatory body, the NCAA, that polices this environment. And while it may not be perfect in its policing, it nonetheless has developed an extensive set of rules and regulations that should take precedence over any interloper in their attempts to become involved in the situation. Indeed, if we assume that the NLRB is correct, it would appear that the NCAA should be a joint employer with Northwestern regarding the football players at issue. And that results in a whole new series of legal issues that were not addressed by the Regional Director’s decision.
The bottom line is that the Regional Director’s decision basically states that, notwithstanding a long history of viewing student athletes as being outside the realm of the employment relationship, it now believes that conclusion was an improper legal determination. But the Regional Director is attempting to put a round peg in a square hole, and ultimately it just does not fit. A lot of students, not just student athletes, would be defined as employees as a result of the decision issued by the Regional Director. Which is why the NLRB ruled long ago, in Brown University, that graduate students were not employees within the meaning of the Act, as these individuals are primarily students. In other words, these individuals can not play football unless they are students, it is not the reverse, where you can not be a student unless you play football.
Whether or not this will ever reach the Court of Appeals in some fashion is yet to be seen, given the fact that it would require the Board to uphold the Regional Director’s decision upon review, and then result in the need for a test of the certification, assuming an election was held and the vote resulted in a favorable outcome in favor of the Union. But I seriously doubt any Court of Appeals would uphold the determinations in the decision and direction of election.