The National Labor Relations Board set to Review Decision Involving Northwestern University Football Players

In an action that could alter the landscape of intercollegiate athletics—and with potential implications well beyond sports—a regional director for the National Labor Relations Board (NLRB) decided in March 2014 that football players at Northwestern University could hold a union election.  Specifically, the regional director determined that football players at the university qualified as employees under the National Labor Relations Act (NLRA).  This designation entitled the players to vote on whether to form a collective bargaining unit and be represented by a union.  For now, the status of unionization rights for student-athletes is on hold, as the full NLRB has decided to review the decision.  This column discusses the Northwestern decision and more generally looks at the legal status of collective bargaining rights for higher education students, specifically in regards to graduate student workers.

Overview of Collective Bargaining Rights in Higher Education for Students

In discussing collective bargaining rights in higher education, an important distinction to keep in mind deals with legal standards that apply to public colleges and universities and those for private institutions.  For public colleges and universities, the availability or lack of collective bargaining rights for particular classes of students (e.g., graduate students or student-athletes) is subject to state law.  That is, collective bargaining rights at public colleges and universities are a matter of state law.  Private higher education institutions are subject to federal law, specifically the provisions of the NLRA.

States differ in their treatment of student employees in relation to collective bargaining rights and for letting public employees in general engage in union activities (or prohibiting them from doing so).  A select number of states (e.g., California and Florida) grant collective bargaining rights to graduate student employees at public colleges and universities.  Other states do not permit the formation of collective bargaining units by student workers at public colleges and universities.

For states that consider students workers at public colleges and universities as employees for purposes of collective bargaining, students working in various graduate employment contexts are eligible to negotiate collectively with the institution on such items as wages and benefits (e.g., healthcare coverage).  The availability of such rights does not mean that a collective bargaining group must exist.  Instead, the student employees vote on whether to form a collective bargaining unit to negotiate on their behalf.  In addition, which particular groups of students (e.g., graduate workers or student-athletes) are eligible to engage in such activity is a matter of state law.

At private colleges and universities, such as Northwestern University, federal law, through the NLRA, governs collective bargaining rights.  While the Northwestern case deals with the emerging issue of collective bargaining rights for student-athletes, questions over the collective bargaining rights for various groups in higher education under the NLRA is not a novel issue.  A key legal determination under the law involves whether a group of employees is eligible to engage in collective bargaining activities.  For instance, the U.S. Supreme Court held in a 1980 decision (NLRB v. Yeshiva University) that full-time faculty members at private colleges and universities typically held managerial responsibilities that made them ineligible to engage in collective bargaining activities protected by the NLRA.

In the student context, an ongoing issue of dispute has involved the status of graduate workers under the NLRA.  In a 2004 decision (Brown University), the NLRB ruled that graduate student assistants were not covered under the NLRA.  This determination reversed a 2000 decision where the NLRB had determined that graduate student workers qualify as employees under the NLRA (New York University).  In 2013, the NLRB appeared ready to revisit the status of graduate workers under the NLRA in a case involving New York University, but the parties in the case agreed to withdraw the action after reaching an agreement to permit graduate students at the university to vote on forming a collective bargaining unit (Jaschik, 2013).  When the NLRB reviews the decision involving Northwestern University, it might take the opportunity to revisit the Brown decision and to consider if graduate workers should be eligible to engage in collective bargaining activities protected by the NLRA.

The Northwestern University Decision

In the decision pending for review by the NLRB, a regional director determined that scholarship football players at Northwestern University constituted employees for purposes of the NLRA.  This ruling meant that football players at the institution could vote on whether to form a collective bargaining unit.  In determining that scholarship football players at Northwestern are employees for purposes of the NLRA, the regional director considered the responsibilities and conditions placed on football players at the university.

The regional director discussed in the opinion that conditions imposed on football players and not on the regular student population included a requirement for first and second year scholarship football players to live on campus.  All scholarship football players were required to satisfy rules that included gaining permission to hold outside employment, providing information to the coaching staff about the vehicle they drive, and prohibiting players from swearing in public.  Football players also had to agree to rules related to travel and to their academic performance.  Players had to agree not to make money off their image or reputation during their time as a student-athlete at Northwestern, while also agreeing to permit the university and the Big Ten Conference to use their name, likeness, or image for any purpose.  Scholarship football players also had to abide by social media regulations.  These included restrictions on information and content the student-athletes could post on social media.  Football players also were required to “friend” designated coaches on their social media pages as part of the monitoring of players’ social media activities.  The regional director also discussed the substantial time commitment made by the players to team activities.  In sum, the decision provides an overview of the heavily regulated life of football players at Northwestern University.

The kinds of requirements and conditions placed on football players at Northwestern are not unusual in the context of intercollegiate athletics.  A prime reason for such rules is that Northwestern, along with a number of other colleges and universities, must make sure to adhere to the rules set by the National Collegiate Athletic Association (NCAA).  The NCAA represents a major force in intercollegiate athletics, comprising a voluntary membership organization that, among its activities, sets standards for participation in intercollegiate athletics for its member schools.  The outcome of the Northwestern case may have important ramifications for how the NCAA regulates the institutions and athletic conferences under its supervision.  One of the complicating factors with the Northwestern case, mentioned previously, is that collective bargaining at private higher education institutions is subject to the NLRA but public colleges and universities fall under state law.  Thus, depending on what the NLRB decides, the NCAA could face an intercollegiate athletics landscape where some athletes are able to engage in collective bargaining and others are not.

While the regional director determined that Northwestern’s scholarship football players should be considered employees under the NLRA, the full NLRB has decided to review the decision.  This means that a vote already taken by football players on whether to form a collective bargaining unit has not been released.  The NLRB could decide to uphold the initial decision, which would open the possibility for other collective bargaining efforts by student-athletes at other institutions.  As pointed out, the NLRB might also decide to revisit the 2004 decision involving Brown University and recognize graduate student workers as employees under the NLRA.  Alternatively, the NLRB could decide to exclude student-athletes as workers under the NLRA and to continue the legal status quo with graduate student workers announced in Brown (2004).

Conclusion

The outcome of the NLRB’s review of the Northwestern University decision is important for intercollegiate athletics and for higher education in general.  If the decision is upheld, other intercollegiate athletics programs, at least at private institutions, will have to navigate issues related to collective bargaining and student-athletes.  As a result, the NCAA might need to revisit its standards and rules related to such issues as compensation for student-athletes.  Beyond athletics, the NLRB decision could also signal new movement regarding the status of collective bargaining rights for student workers in higher education, notably in the context of graduate student assistants.  Given that numerous private colleges and universities employ graduate student assistants in their student affairs divisions, the outcome in the Northwestern case may have direct implications for student affairs.  The collective bargaining story unfolding at Northwestern University highlights important issues related to the role of intercollegiate athletics in higher education and the treatment of student-athletes.  More broadly, the case touches upon matters dealing with the equitable treatment of student employees, including those working in student affairs offices.

Discussion Questions

1. What is the status of collective bargaining rights for graduate student employees at your institution?  In your state?  Should graduate student workers be able to join unions?

2. What might be some of the possible implications for intercollegiate athletics and for higher education if the Northwestern University decision is upheld by the NLRB?

3. Apart from the outcome of the NLRB’s review of the Northwestern decision, should the NCAA amend its policies to allow colleges and universities to compensate student-athletes?  What about placing limits over the ways in which institutions exert control over student-athletes in such areas as social media policies?

References

Brown University, 342 NLRB 483 (2004).

Jaschik, S. (2013, November 27). NYU and UAW agree to terms of election for teaching assistant union. Inside Higher Ed. Retrieved from http://www.insidehighered.com/news/2013/11/27/nyu-and-uaw-agree-terms-election-teaching-assistant-union – sthash.FJDgjjbO.dpbs

NLRB v. Yeshiva University, 444 U.S. 672 (1980).

Northwestern University v. College Athletes Players Association, No. 13-RC-121359, 2014 WL 1922054 (N.L.R.B) (March 26, 2014).

About the Author

Neal H. Hutchens is an associate professor in the Higher Education Program in the Department of Education Policy Studies at Penn State.

Please e-mail inquiries to Neal H. Hutchens.

Disclaimer

The ideas expressed in this article are not necessarily those of the Developments editorial board or those of the ACPA Governing Board, Leadership, or International Office Staff.