A group of Northwestern University football players recently filed a petition with the National Labor Relations Board (NLRB) seeking to be represented by a labor union. Although this request is the first of its kind, it presents the same broad implications presented by the earlier petitions filed by graduate teaching and research assistants at private universities, namely, are the athletes or graduate assistants primarily employees, or primarily students? Ballard Spahr has great familiarity with those issues, having represented three universities in their responses to petitions filed by graduate students.

Can college athletes unionize?

Because the National Labor Relations Act (NLRA) protects only “employees,” the Northwestern athletes must first convince the NLRB that they are employees under the NLRA. The NLRB has never before made—or been asked to make—such a determination. Further compounding the uncertainty of the athletes-as-employees question is the NLRB’s inconsistency in its rulings regarding the status of graduate teaching and research assistants under the NLRA.

In 2000, the NLRB ruled that graduate teaching and research assistants at New York University (NYU) were employees under the NLRA. NYU recognized the union, and the parties reached a collective bargaining agreement in 2001. The NLRB reversed fields in 2004, however, when it determined that graduate teaching and research assistants at Brown University were not employees because their relationship with the University was primarily “educational.” Based upon the NLRB’s decision in Brown University, NYU declined to bargain with the graduate students’ union when their collective bargaining agreement expired in 2005.

A contingent of graduate students from NYU and the Polytechnic Institute of NYU re-petitioned for recognition in 2010, and the NLRB voted to hear the petition and reconsider its Brown University holding. The parties reached a voluntary agreement in November 2013, however, and the union withdrew its NLRB petition in exchange for NYU’s agreement to allow a representation election to move forward.

In the absence of a decision regarding the latest petition from graduate students at NYU and the Polytechnic Institute of NYU, the NLRB’s position in Brown University remains controlling law. The decision to reconsider Brown University may nevertheless suggest that the NLRB is wavering in its stance toward graduate students as employees under the NLRA. With the latest petition filed by Northwestern athletes likely to implicate many of the same issues, substantial uncertainty remains regarding a question that could have far-reaching ramifications for private colleges and universities across the country.