U.S. labor board calls Northwestern athletes ‘employees’ in memo on ‘unlawful’ social media restrictions

Northwestern football players celebrate after beating Duke during a nonconference game on Sept. 17.
Northwestern football players celebrate after beating Duke during a nonconference game on Sept. 17.
(Matt Marton / Associated Press)

A 15-word footnote by an associate general counsel for the National Labor Relations Board has added to the long-running debate over whether college football players are employees.

The six-page advice memorandum issued last month called restrictions Northwestern placed on how football players used social media and handled media requests “unlawful.” But a footnote on the document’s first page might’ve drawn the most attention.

“We assume, for purposes of this memorandum, that Northwestern’s scholarship football players are statutory employees,” the footnote said.

Ramogi Huma, president of the National College Players Assn., called it “historic.”


“It’s significant for this case that they would treat college athletes as employees,” he said Tuesday. “It’s the first time the national office weighed in.”

Donald Remy, the NCAA’s chief legal officer, disagreed.

“The footnote in the associate counsel’s memo does not reflect a binding position of the NLRB,” he said in a statement. “Indeed, by its language, it assumes a posture that is a hypothetical. … Make no mistake, student-athletes are not employees under the law.”

William B. Gould IV, a professor emeritus at Stanford who served as chairman of the NLRB from 1994 to 1998, didn’t make much of the footnote.

“They only have authority to opine on issues of law that relate to employees,” he said. “So they’re just assuming for the purposes of this memo and they’re employees because otherwise the memo would have absolutely no significance and they couldn’t address any of the issues.”

An NLRB regional director ruled in 2014 that Northwestern football players were employees, but the full NLRB board declined to assert their jurisdiction in the matter last year and dismissed a petition for players to unionize, handing a significant victory to the NCAA and Northwestern.

The memorandum, posted on the NLRB’s website and first reported by ESPN on Tuesday, related to concerns about language in Northwestern’s football handbook. It limited what players could post on social media, their interaction with news media for interviews and the discussion of health and safety issues in addition to how disputes were resolved.

Northwestern revised the language in the handbook and the memorandum recommended the charge be dismissed. The case was closed last month.

Gould said he doesn’t believe the memorandum will have any effect on the 16 other schools in the Football Bowl Subdivision that, like Northwestern, are private. The NLRB does not have jurisdiction over public school employees.

“Those who put much significance in this have really made much ado about very little,” he said.

Twitter: @nathanfenno


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