David Kiefer writes:

Fourteen months after the National Labor Relations Board declined to assert jurisdiction over a representation petition filed by Northwestern University’s football players, the Board’s Division of Advice issued an Advice Memorandum concerning those same players, which found that certain rules contained in Northwestern’s “Football Handbook” violated Section 8(a)(1) of the National Labor Relations Act.  See Northwestern Univ., NLRB Div. of Advice, Case No. 13-CA-157467 (Sept. 22, 2016).

Copyright: / 123RF Stock Photo
Copyright: / 123RF Stock Photo

The Division of Advice’s memorandum, which is dated September 22, 2016, analyzed four policies contained in Northwestern’s “Football Handbook” to determine whether the policies could be reasonably construed to prohibit Section 7 activity.  See, e.g., Guardsmark, LLC v. NLRB, 475 F.3d 369, 374 (D.C. Cir. 2007) (“To determine whether a work rule violates NLRA section 8(a)(1), the Board considers whether the rule would reasonably tend to chill employees in the exercise of their statutory rights. . . . [I]f nothing in the rule explicitly restricts section 7 activity, then . . . the rule violates the Act if . . . employees would reasonably construe the language to prohibit Section 7 activity.”) (quotations and citations omitted).

The Division of Advice analyzed four allegedly unlawful policies from the “Football Handbook”: (1) the “Social Media Policy,” which stated that players’ social media sites would be monitored and “sanctions” issued against players for improper postings; (2) the “Sports Medicine & Player Communication Rule,” which sought to preclude players from discussing “any aspects of the team . . . with anyone,” including “the physical condition of any players”; (3) the “Dispute Resolution Procedure,” which provided that any “complaint or grievance concerning personal rights and relationships to the athletic program” must be grieved according to a four-step process and could be discussed only with football and athletic department employees; and (4) the “Athletic Communications for Student Athletes Rule,” which stated that all interviews must be handled through the athletic communications office, and any statements made by players in those interviews should be “positive when talking about your teammates, coaches and team.”

The Division of Advice determined that all four policies could reasonably be construed as prohibiting Section 7 activity.  Collectively, the challenged policies violated Section 8(a)(1) because, among other things, they could reasonably be construed to preclude “discussions about vital health and safety issues,” prohibit “discussions with fellow players and third parties concerning workplace grievances,” and limit the timing and content of media interviews.  Despite the fact that Northwestern “d[id] not adequately repudiate the unlawful handbook rules,” the Board declined to issue a complaint because (i) the university modified the “Football Handbook” to address the policies’ shortcomings and (ii) provided notice to the players regarding the handbook modifications.

The Advice Memorandum is notable because it involves the application of federal labor law to intercollegiate athletics.  However, the Advice Memorandum’s impact should not be overstated, particularly as it relates to athlete compensation and union representation.  First and foremost, the Advice Memorandum does not have the legal effect of a Board decision.  “Division positions are prosecutorial, not adjudicative, in character: they are not attributable to the Board, and they are not reviewable in court.”  Constr., Bldg. Material, Ice & Coal Drivers, Helpers & Inside Employees Union, Local No. 221, v. NLRB, 899 F.2d 1238, 1241 (D.C. Cir. 1990).  Second, the Advice Memorandum did not address the central issue arising from the football players’ prior representation proceeding – i.e., whether scholarship football players are statutory employees under Section 2(3) of the Act.  Instead, the Division of Advice noted in a footnote that it had simply “assume[d], for purposes of this memorandum, that Northwestern’s scholarship football players are statutory employees.”  Moreover, although Northwestern modified its policies in the “Football Handbook” to comply with the Act, it reserved its right to challenge any subsequently filed representation petition on the grounds that scholarship football players are not statutory employees.  As expressly noted in the Advice Memorandum, Northwestern “still maintain[ed] that athletic scholarship football players are not employees under the [Act].”

David Kiefer is an associate in the Labor & Employment Department, resident in the firm’s Pittsburgh, PA office.