BY HANK REICHMAN
In a potentially landmark victory for the free expression rights of student athletes and other student employees, the National Labor Relations Board has declared that Northwestern University must eliminate “unlawful” rules governing football players and allow them greater freedom to express themselves, ESPN reported today. The ruling found that as employees the players must be freely allowed to post on social media, discuss issues of their health and safety, and speak with the media.
The new rules apply as well to the football programs at all seventeen private universities that play in the Football Bowl Subdivision (FBS) of the NCAA’s Division I, including schools such as Notre Dame, Stanford and Baylor — but not public universities. The NLRB governs relations between private employers and their employees and has no power over public institutions. Its findings on Northwestern became public on Friday in response to an ESPN.com Freedom of Information Act request.
The seventeen private schools will no longer be able to ban players from posting on social media — as some high-profile programs have done — or even regulate what they say. Northwestern once barred players from talking to any media not approved by the school, but will no longer be allowed to do so.
As ESPN’s report noted, “In addition to granting players greater freedoms, the NLRB ruling will offer athletes a clear path to bring their issues before an independent agency outside of the organizations that have historically governed college athletics — the universities, the conferences and the NCAA.”
The ruling did not address compensation for athletes, but someone could now file a charge with the NLRB asserting that failing to pay players constitutes an unfair labor practice. Until now, that issue has been contested only in antitrust courts.
The action against Northwestern stemmed from a charge filed in August 2015 against the school by David Rosenfeld, a labor lawyer in Alameda, California, and echoed the 2014 attempt by Northwestern players to form a union. Rosenfeld alleged that Northwestern was guilty of “unfair labor practices” in its treatment of football players.
As ESPN’s report noted, “Rosenfeld, who had no previous connection with Northwestern, relied on a provision of American labor law that allows anyone, anywhere, to bring unfair treatment of employees to the attention of the NLRB for remedial action. By the same token, if someone were to challenge the NCAA’s compensation rules, it would not need to be a player — it could be anyone.”
In response, the NLRB issued an “advice memorandum” late last month that deemed the Northwestern rules “unlawfully overbroad.” The starting point for Rosenfeld’s filing was the decision in 2014 by the NLRB Regional Administrator in Chicago, Peter Ohr, that Northwestern players were employees and entitled to bargain collectively. Northwestern vigorously disputed the idea and appealed Ohr’s decision to the full NLRB. During the course of the appeal, most of the private universities that would be affected joined Northwestern’s effort. They succeeded in obtaining a ruling from the board that the agency would not support the Northwestern players’ efforts to gain union recognition.
The board said it did not make sense for the NLRB to take jurisdiction over a potential Northwestern players union since it was the only private school in the Big Ten. It would be chaos, the board reasoned, if Northwestern was governed by the NLRB and the other schools were governed by the laws of New Jersey, Pennsylvania, Ohio, Michigan, Wisconsin, Indiana, Illinois, Iowa and Nebraska.
AAUP General Counsel Risa Lieberwitz concluded at the time that the decision was limited in scope. She wrote:
The NLRB concluded that asserting jurisdiction over the Northwestern University scholarship football players would not promote “stability in labor relations.” The Board pointed to the contrast between this case, which involved unionizing a single football team, as opposed to the traditional approach to unionization of sports teams on a league-wide basis. The Board was also concerned with the complications of asserting its jurisdiction in this case, given the NCAA and the Big Ten conference’s substantial control over individual teams, which are mostly from public colleges and universities outside the NLRB’s jurisdiction.
What is the impact of the NLRB’s hands-off approach? It’s true that the Northwestern grant-in-aid scholarship football players’ petition for an NLRB-conducted election is now over. But it’s important to recognize the narrow scope of this decision not to assert jurisdiction. The Board explicitly limited its decision to the unusual circumstances of this case, avoiding broader questions involving the unionization of graduate students and others. In fact, much of the Board’s decision consisted of explanations of what the Board was not doing.
The new decision demonstrates just how limited the earlier ruling’s scope was.
For even as the NLRB refused to take jurisdiction over the collective bargaining situation, Ohr’s decision that the players were employees remained untouched and in effect. In the memorandum made public last week, an associate general counsel of the NLRB stated in a footnote that he “assume(d) that Northwestern’s scholarship football players are statutory employees.”
Northwestern, in a written statement from vice president for university relations Alan K. Cubbage to ESPN.com, stated that the school “disputes the General Counsel’s assumption” that Northwestern’s athletes are employees and asserted that they “are students, first and foremost.”
According to ESPN, in presenting his case,
Rosenfeld cited the Northwestern team handbook that was a critical exhibit in the 2014 hearing. The handbook includes rules governing the daily lives of the players and makes clear that they would be closely supervised by coaches.
“I obtained the handbook from the NLRB with a Freedom of Information Act request and located the provisions that were unfair labor practices,” Rosenfeld told ESPN.com.
The provisions cited by Rosenfeld and found to be “unlawful” included coaches’ monitoring of players’ social media use and bans on discussion of “any aspects of the team … with anyone,” discussing individual grievances with fellow team members or “third parties,” including lawyers and union representatives, and all contacts with the media unless they were arranged by the “athletic communications office.”
During the course of the just concluded NLRB proceedings, Northwestern agreed to modify or to eliminate the rules in question. The university’s changes and its notice to team members of the new policies resulted in the NLRB dismissing the charge without further hearings or actions. The initial filings by Rosenfeld and Northwestern have not yet been made public.
Under the rule that the NLRB found to be “unlawful,” Northwestern coaches and even the university police could “regularly monitor” social media postings made by football players. Former team captain and quarterback Kain Colter, the leader of the players union effort, testified in the NLRB hearing in Chicago early in 2014 that when he posted a photo of himself in Oakley sunglasses that were a gift at a celebrity golf outing, an assistant coach texted him within 10 minutes of the posting that he must remove it. The coach was concerned that the selfie might be construed as an endorsement of Oakley products.
Under the modification offered by Northwestern, the new social media rule provides that postings “can be seen” by Northwestern personnel and cautions against posting “full or partial nudity (of yourself or another) sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment, or unlawful activity.”
A previous handbook rule on “communications” told players that they must “never discuss any aspects of the team with anyone.” Emphasizing the confidentiality of players’ physical conditions and planned team strategies, the rule stated, “The team is a family and what takes place on the field, in meetings, or in the locker room stays within this family.”
The new rule is limited to a ban on discussion of individual medical conditions and allows players to discuss “on a no-name basis” — owing to HIPAA, they cannot refer to another player by name — any “vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players.”
Rules governing Northwestern’s student-athlete grievance process — called the “Student-Athlete Rights and Responsibilities (Dispute Resolution Procedure)” in the handbook — were also deemed unlawful and Northwestern has completely eliminated the procedures. The rules had stated that any “grievance concerning personal rights and relationships” within the team must begin with an appeal to the team’s “director of football operations (Cody Cejda), further appeals to Head Coach Pat Fitzgerald and the athletic director, and ultimately a review by Northwestern President Morton O. Schapiro.”
The university’s elimination of its procedures for player grievances was based on the NLRB’s finding that the rule “prohibited discussions with fellow players and third parties concerning workplace grievances.”
Another handbook rule told Northwestern players that they “should never agree to an interview (with the media) unless the interview has been arranged by the athletic communications office,” and that the players must be “positive when talking about your teammates, coaches and team.” Responding to the NLRB’s conclusions that the rule was an infringement on player freedoms, Northwestern abandoned the rule, rewriting it to provide that players “may directly speak with members of the media if (they) choose to do so.”
In its revised handbook, the school suggested to players that, in interviews, they should “share credit for your success by talking about the contributions of your teammates and use their names.” Players were also admonished to remember that “every great running back needs a good offensive line” and “talking about the great work of others shows you have confidence in your own role and the value of your own contributions, so you’re not afraid of letting someone else have their moment of glory, too.”