Football: National Labor Relations Board attorney describes Northwestern athletes as ‘employees’ in memo


Daily file photo by Zack Laurence

Coach Pat Fitzgerald looks up during Northwestern’s Oct. 1 game at Iowa. The team’s football handbook rules were previously “overbroad,” according to a September NLRB advice memo.

Max Gelman, Gameday Editor


An associate general counsel for the National Labor Relations Board referred to Northwestern athletes as “employees” in the footnote of a memo issued last month and made public in recent days.

The advice memorandum, dated Sept. 22, deemed past team rules for athlete conduct on social media and media interaction “unlawful.” Following the University’s voluntary revision of the handbook’s policies, the memo called for the dismissal of a complaint filed by a California labor lawyer against the University alleging that the football team’s handbook violated the players’ rights as employees.

“Although Northwestern disputes the General Counsel’s assumption that Northwestern’s scholarship football players are employees, the rules of the former Football Handbook that were the subject of this charge have been modified,” University spokesman Al Cubbage said in a statement. “We agree with the NLRB Advice Memorandum’s statement that it would not effectuate the policies and purposes of the NLRA to issue a complaint in this case and that the charge should be dismissed.”

The charge was withdrawn Sept. 28, according to the NLRB website, and the advice response memo was made public recently after filed a Freedom of Information Act request for the material.

University President Morton Schapiro reiterated the position that football players are not employees in an interview with The Daily on Tuesday. A request for comment from coach Pat Fitzgerald was declined through a team spokesman.

Members of NU’s football team moved to unionize in January 2014, petitioning the NLRB to be recognized as University employees. Although a regional board agreed with the players in March 2014, the NLRB dismissed the petition in August 2015, effectively declaring that student-athletes should not be considered employees.

The NLRB did not issue a ruling on the more recent matter of the handbook’s policies, and the athletes were only referred to as employees “for the purposes of this memorandum.” Rather, the memo informed the NLRB that its general counsel would not be bringing forward litigation for the complaint, said Marshall Babson, a labor relations lawyer who was on the NLRB in the 1980s, in an email to The Daily.

Babson clarified to The Daily that an investigation by the NLRB showed a technical violation of the University’s rules, but also that NU promptly revised the rules voluntarily.

Such “merit dismissals” are not common, but they are not rare, Babson said.

Some of the policies in the handbook altered by NU involved what the athletes could post on social media, how to conduct themselves during interviews with reporters and how to discuss team medical records. Additionally, a policy outlining an appeal system for resolving disputes was eliminated.

For example, athletes’ posts could be “regularly monitored by a number of sources within Northwestern,” including the University Police. When athletes conducted interviews with reporters, they were explicitly instructed to “be positive when talking about (their) teammates, coaches and team” and to “never agree to an interview unless the interview has been arranged by the athletic communications office.”

The handbook specifically referred to The Daily Northwestern as a media outlet that athletes should “politely, but firmly, redirect the reporter(s)” to Athletics Communications. Under the new handbook guidelines, athletes are now permitted to speak directly with the media and have “the option of referring the media representative to the athletic communications office.”

Tim Balk and Julia Jacobs contributed reporting.

Correction: A previous version of this story misidentified the timing of the regional board decision where Northwestern’s football players were allowed to form a union. The decision came down in March 2014. The Daily regrets the error.

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