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NLRB Ruling in Northwestern Case Could Pave Way for Player Compensation Claims

The NLRB held that private schools regularly monitoring players social media use, among other things, is an unfair labor practice.

by Sean Newell
Oct 11 2016, 4:54pm

Jeffrey Becker-USA TODAY Sports

In a move that could open a new avenue for challenging the National Collegiate Athletic Association's prohibition of athlete compensation beyond scholarships and cost-of-living stipends, the National Labor Relations Board has ruled that Northwestern University and the 17 other private universities that play FBS football cannot prohibit players' usage of social media, limit their access to media members, or prevent them from discussing their health.

Responding to an August 2015 charge filed by David Rosenfeld, a California attorney who previously had no connection to Northwestern, the five-member NLRB board held that closely monitoring these activities constituted an unfair labor practice. The ruling was announced in an advice memorandum last month, obtained by ESPN via a FOIA request.

Rosenfeld obtained a copy of the Northwestern student handbook through his own FOIA request to the NLRB, and then singled out all the portions he deemed to be unfair labor practices—a standard that applies to the school's football players because they were deemed to be statutory employees under federal labor law during a 2014 effort to unionize.

As a result of the proceedings, Northwestern agreed to change or remove several portions of the handbook, including:

* Rules stating 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."

* Rules that had schools officials "regularly monitor[ing]" player social media use, which have been replaced by a "new social media rule [which] provides that postings "can be seen" by Northwestern personnel and cautions against posting "full or partial nudity (of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 blanket ban to never "discuss any aspects of the team with anyone," replaced by a new rule that 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.'

Led by former captain and quarterback Kain Colter, Northwestern's football players previously attempted to unionize. Peter Ohr, a NLRB Regional Administrator in Chicago, collected evidence from players and the school and ruled that football players met the relevant legal tests to be considered school employees. Following an appeal by Northwestern and most of the 17 other private universities implicated, the five-member board at the NLRB's national office in Washington, D.C. declined to involve itself in college sports. In that decision, the NLRB basically said it would be too complicated to have federal labor law governing Northwestern football, while state labor law, if even deemed applicable, governed other public schools in the Big Ten. (The NLRB only has jurisdiction between private employers and employees, so Ohr's ruling did not apply to state schools like Michigan and Ohio State).

Importantly, however, the board did not reverse Ohr's ruling that college football players were employees. As far as the NLRB is concerned, that still holds true—a footnote in the advice memorandum noted that it was "assume[d] that Northwestern's scholarship football players are statutory employees." This is significant, because due to the way the NLRB operates, any person—as Rosenfeld did in this case—can file a charge on behalf of the players; it does not have to be the players themselves. And that's where things potentially get very interesting. Now that a precedent has been set that even monitoring social media qualifies an unfair labor practice for private school football players who are considered school employees, there's nothing stopping anyone from filing a charge on behalf of football players arguing that denial of compensation is similarly unfair. Northwestern's players are now free to Tweet and talk to anyone they like, but at some point in the future, they could be free to do a whole lot more.

[ESPN]