Stephen R. McCutcheon, Jr.
As expected, Northwestern University filed an appeal of the decision by the regional director of the National Labor Relations Board finding that the University’s football players were employees and entitled to decide whether to unionize. The University’s appeal argues that the Regional Director ignored much of the record, misconstrued and disregarded NLRB and Supreme Court precedent, and failed do consider the consequences of the decision.
In this unprecedented decision, the Regional Director set out to alter the underlying premise upon which collegiate varsity sports is based. By finding that Northwestern University’s football program is a commercial enterprise and that its football scholarship student-athletes are “employees” within the meaning of the National Labor Relations Act (“Act”), the Regional Director ignored the evidence of Northwestern’s primary commitment to the education of all of its student-athletes, evidence that fully supports that its student-athletes are primarily students, and not employees.
Regardless of the merits of Northwestern’s appeal, it has a difficult road ahead. This is a controversial decision, and the ramifications for collegiate athletics and scholarships have yet to be fully known, but this decision would not have been made without the approval of NLRB General Counsel Richard Griffin.
A month before the Regional Director issued his decision that Northwestern’s scholarship supported athletes are “employees” General Counsel Griffin issued his memorandum to the Regional Directors requiring his consultation on a large number of topics affecting his and the NLRB’s policy priorities. General Counsel Griffin instructed the Regional Directors that they “should not act without clearance from Advice before taking controversial positions, e.g., before seeking to overturn Board precedent” and that they should make his office “aware of cases that are the subject of attention outside their local area, or which have a high profile in the local area . . .” In this context, it is unlikely that the Regional Director’s decision was rendered without the consent of the General Counsel, and the knowledge it would be supported by a majority of the members of the Board.