No Union For Northwestern Football Players


In a case that previously received much media attention, the National Labor Relations Board punted on the issue of whether Northwestern scholarship football players are employees, and could thereby unionize.  The Board instead declined to exercise jurisdiction, dismissing the union’s petition to represent the players.

In 2014, scholarship football players at the private Northwestern University sought to unionize, and filed a petition with the Board.  The Board’s Regional Director determined that these players were employees within the meaning of the National Labor Relations Act, in that they performed a service (playing football) for compensation (scholarship money), and that this arrangement constituted a “contract for hire.”  Moreover, these services were subject to the University’s right of control (required workouts, restrictions on personal activities, and other applicable regulations).  The Regional Director found that the players were not primarily students, due to the 50-60 hours a week devoted to football, and that such activities were separate from the academic degree program.

Northwestern University appealed the Regional Director’s decision to the Board, arguing that the scholarship players are not employees.  The five member Board (3 Democrats and 2 Republicans) issued a unanimous ruling in Northwestern University.  The Board noted that, even where it has the statutory authority to act, by finding the players to be employees, it may nonetheless decline to do so if “it would not effectuate the policies of the Act to assert jurisdiction.”  Without deciding whether the student scholarship players are employees, the Board then stated it was declining to exercise jurisdiction.  The Board stated that its holding is “primarily premised” on the nature of the sports leagues (with the high level of control exercised by those leagues over individual teams, such as the minimum academic requirements for players, the terms of scholarships, the amateur status players must maintain, etc.) and the composition of the football league (with an overwhelming majority of teams from public colleges and universities, over which the Board has no jurisdiction), such that “it would not promote stability in labor relations to assert jurisdiction in this case.”

The decision was something of a surprise from the left-leaning Board.  The Board, however, was very clear that it was not deciding whether scholarship players are employees under the Act, and that its holding was narrowly limited to this specific case.  Further, the Board ominously stated that its “decision not to assert jurisdiction does not preclude a reconsideration of this issue in the future.”