NLRB counsel: Northwestern had 'unlawful' limits on players, who are 'employees'

The NLRB considers Northwestern football players to be employees. USATSI

In a memo offering advice, the National Labor Relations Board's general counsel concluded some Northwestern University football team rules were "unlawful" and described the players as employees. Northwestern changed the rules in question so the language allows players to more freely post on social media, discuss health issues, and speak with the media.

The decision, which was first reported by ESPN.com, will be analyzed extensively about what it could mean for the 17 private universities in the Football Bowl Subdivision. There could be future challenges over player restrictions imposed by private universities. The NLRB only governs private employers and their employees, and has no power over public universities.

The most relevant part of the Sept. 22, 2016 memo, from NLRB associate general counsel Barry J. Kearney was this footnote: "We assume, for purposes of this memorandum, that Northwestern's scholarship football players are statutory employees."

"The general counsel specifically putting in writing that they would treat Northwestern players as employees is historic." said College Athletes Players Association director Ramogi Huma, who helped organize the unsuccessful attempt by Northwestern football players to form a union. "This is not a small thing."

In August 2015, the NLRB's five-member national board ruled that Northwestern players could not attempt to unionize. The decision ended the case, though the board punted on the question about whether Northwestern players are employees. Instead, the NLRB concluded that it wouldn't assert jurisdiction because doing so would create chaos for public and private universities abiding by different NCAA rules since private-school players would be able to collectively bargain.

Also in August 2015, a labor lawyer named David Rosenfeld alleged Northwestern was guilty of "unfair labor practices" over how it treated football players. The NLRB issued its "advice memorandum" last month in response to Rosenfeld's charge. The NLRB dismissed the charges against Northwestern and the NCAA once Northwestern changed some of its policies.

For instance, Northwestern's team handbook used to say that social media posts by football players may be "regularly monitored" by athletic department and university officials and campus police. Now it says publicly posted information on social media "can be seen by any person with a smart phone or internet access, including individuals within Northwestern University." The university also removed a line stating concern about protecting its image due to social media posts by players.

Northwestern's team handbook used to tell players, "You should never agree to an interview unless the interview has been arranged by the athletic communications office. All media request for interviews must be made through athletic communications." The rule now allows players the option of referring the media member to the communications department or personally speaking with the reporter.

The handbook used to instruct players: "Never discuss any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone. The team is a family and what takes place on the field, in meetings or in the locker room stays with the family." The new rule limits the ban to individual medical conditions, due to medical privacy laws. It allows players to discuss "on a no-names basis about vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players."

Said Huma: "The other thing that's important, as we've said from the beginning, is college athletes deserve equal rights under the law to protect themselves. We saw it play out in this incident. Northwestern changed its rules based on the labor rights of its athletes."

Northwestern vice president for university relations Alan Cubbage said the school disputes the NLRB general counsel's "assumption" that football players are employees. Cubbage said Northwestern is committed to ensuring the health and safety of athletes.

"We agree with the NLRB Advice Memorandum's statement that it would not effectuate the policies and purposes of the (National Labor Relations Act) to issue a complaint in this case and that the charges should be dismissed," Cubbage said in a statement.

The question moving forward is what precedent, if any, this decision may have on private universities. Lawyers will inevitably dissect this opinion and consider other challenges to the NLRB related to college sports.

"Technically, it's not the same as when the board rules a decision, but the general counsel can get the ball rolling by the complaints that are made - sort of like a prosecutor," said John Adam, who was the attorney for CAPA in the original Northwestern case. "In our case, the board declined to exercise jurisdiction to organize and collectively bargain. But that doesn't mean they're not employees. I think the only way to interpret this advice memorandum is a building block toward securing legal rights for players, at least in the private sector."

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