On January 31, 2017, the General Counsel to the National Labor Relations Board (“NLRB”) issues Memorandum GC 17-01 (“Memo”), which covered a range of legal issues regarding University faculty and students. The memo addressed a 2015 NLRB case named Northwestern University.
In Northwestern University, the Northwestern University football players that receive scholarships attended to form a labor union. The Board declined to exercise jurisdiction over a representation petition filed by a union seeking to represent Northwestern University’s football players who receive grant-in-aid scholarships. By declining to exercise jurisdiction, the NLRB never made a determination regarding the status of college athletes and their protections under the National Labor Relations Act (“NLRA”).
It is important to note the reasoning behind the Board’s decision to decline jurisdiction. First, Northwestern University’s Football program is part of the Big Ten, in which Northwestern the only private institution to be apart. Under Section 2(2) of the NLRA, which defines “employers,” as many of the Big Ten, and other Division 1 football teams, are programs of public institutions, making them outside the scope of employers covered under the NLRA. Given the differences in the private/public universities football programs, the NLRB decided not to exercise jurisdiction as it would “no effectuate the policies of the Act to assert jurisdiction.” Second, at that time, the NLRB has never before been asked to assert jurisdiction in a case involving college athletes. Third, according to the NLRB at the time, the scholarship players had little resemblance to the graduate student assistants or student janitors and cafeteria workers whose employee status the NLRB has considered in other cases.
The Board has noted that the decision to decline jurisdiction was based on the facts in the record before them and the changes in circumstances on how scholarship players are treated could later outweigh the considerations that motivated the decisions to decline jurisdiction.
Two years later, in the Memo, the General Counsel reported that, while not concluded in Northwestern, the conclusion that Division 1 Football players in private colleges and universities are employees under the NLRA is supported by statutory language; specifically, the Board’s interpretation of the cases Boston Medical Center and Columbia University.
Though the NLRB has stated its reasoning to support the conclusion in both the Memo and Northwestern University case, it is uncertain whether that analysis will continue into the Trump administration. The Memo was written by General Counsel Richard F. Griffin, who was appointed by President Barack Obama, who will finish his four-year term on November 4, 2017.
For the sake of those in support of unionizing college athletes there may be some hope. On January 25, 2017, President Donald J. Trump appointed Philip Miscimarra, a Republican Obama appointee, was named Acting Chairman of the NLRB. It is important to note that while Philip Miscimarra sided with the majority in the Columbia University case that the NLRB used to support that scholarship receiving football players are employees, this majority decision was only to decline jurisdiction, not support the decision to allow the unionization.
http://www.npr.org/2016/12/22/506625855/trumps-hotel-labor-disputes-underscore-conflict-of-interest-with-nlrb (Discusses Trump’s potential NLRB picks)
https://www.insidehighered.com/news/2016/08/24/nlrb-says-graduate-students-private-universities-may-unionize (History of NLRB Graduate Student Unions)
 Memorandum GC 17-01 from Office of General Counsel, NLRB, General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context, https://www.nlrb.gov/reports-guidance/general-counsel-memos (January 31, 2017)
 Northwestern University, 362 NLRB No. 167 (2015).
 Id. at 2.
 Id. at 3.
 Id. at 5.
 Id. at 3.
 Id. at 6.
 See Boston Medical Center, 330 NLRB 152 (1999); Columbia University, 364 NLRB No. 90 (2016).
 Northwestern University, 362 NLRB at 1.