Nov. 2, 2016 – Labor and employment practitioners will undoubtedly recall the National Labor Relations Board’s (NLRB) well-publicized foray last year into the ongoing public debate surrounding whether certain college athletes should be considered compensated employees – Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015). Through Northwestern University, the Board punted – but left open – the substantive issue of whether private university, grant-in-aid scholarship football players meet the statutory definition of “employee” for purposes of the National Labor Relations Act (NLRA).

Through Northwestern University, the Board elected to not assert its jurisdiction over the College Athletes Players Association’s representation petition because, according to the Board, asserting such jurisdiction “would not serve to promote stability in labor relations.” However, the Board also offered a foreshadowing glimpse into its playbook when it stated, “whether we might assert jurisdiction in another case involving grant-in-aid scholarship football players (or other types of scholarship athletes) is a question we need not and do not address at this time.” Although the Board called timeout last summer, the appropriate “time” for the Board’s ultimate decision concerning “employee” status for certain college athletes may be fast approaching, as explained below.

On September 22, 2016, the Board’s Office of the General Counsel, Division of Advice, issued an Advice Memorandum addressing whether certain prohibitions on player activities [e.g., use of social media to depict “inappropriate” or “embarrassing” behavior; discussion of “confidential” aspects of the team such as “the physical condition of any players”] contained within Northwestern University’s Football Handbook violated the NLRA. Significantly, through the Advice Memorandum, the Division of Advice “assumed, for purposes of [the] memorandum, that Northwestern’s scholarship football players are statutory employees.” Moreover, the Division of Advice concluded, “…the relevant Football Handbook rules were unlawful until they were modified in response to the instant charge.” While the Advice Memorandum does not constitute a legally binding position, it definitely supports the conclusion that the Office of the General Counsel views grant-in-aid athletes at private colleges and universities as employees for purposes of the NLRA. Ultimately, the Office of the General Counsel did not bring a complaint because:

[W]e further conclude that it would not effectuate the policies and purposes of the NLRA to issue [sic] complaint in this case because the Employer, although still maintaining that athletic scholarship football players are not employees under the NLRA, modified the rules to bring them into compliance with the NLRA and sent the scholarship football players a notice of the corrections, which sets forth the rights of employees under the NLRA.

In light of recent failings to advance the ball through antitrust litigation [e.g., SCOTUS’s refusal to take up the O’Bannon case], traditional labor law appears to be the clearest path for college athletes who seek to push the “compensated employee” agenda. For this reason, those invested in collegiate athletics should keep a watchful eye on the legal developments at the NLRB.