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NLRB counsel: Northwestern had


'unlawful' limits on players, who are
'employees'
The memo by the National Labor Relations Board's general counsel is a historic step in
player's rights
by Jon Solomon

@JonSolomonCBS Oct 11, 2016 3 min read

The NLRB considers Northwestern football players to be employees. USATSI

In a memo offering advice, the National Labor Relations Board's general


counsel concluded some Northwestern University football team rules were
"unlawful" and described the players as employees. Northwestern changed
the rules in question so the language allows players to more freely post on
social media, discuss health issues, and speak with the media.
The decision, which was rst reported by ESPN.com, will be analyzed
extensively about what it could mean for the 17 private universities in the
Football Bowl Subdivision. There could be future challenges over player
restrictions imposed by private universities. The NLRB only governs private
employers and their employees, and has no power over public universities.
The most relevant part of the Sept. 22, 2016 memo, from NLRB associate
general counsel Barry J. Kearney was this footnote: "We assume, for
purposes of this memorandum, that Northwestern's scholarship football
players are statutory employees."
"The general counsel specically putting in writing that they would treat
Northwestern players as employees is historic." said College Athletes Players
Association director Ramogi Huma, who helped organize the unsuccessful

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attempt by Northwestern football players to form a union. "This is not a small


thing."
In August 2015, the NLRB's ve-member national board ruled that
Northwestern players could not attempt to unionize. The decision ended the
case, though the board punted on the question about whether Northwestern
players are employees. Instead, the NLRB concluded that it wouldn't assert
jurisdiction because doing so would create chaos for public and private
universities abiding by different NCAA rules since private-school players
would be able to collectively bargain.
Also in August 2015, a labor lawyer named David Rosenfeld alleged
Northwestern was guilty of "unfair labor practices" over how it treated
football players. The NLRB issued its "advice memorandum" last month in
response to Rosenfeld's charge. The NLRB dismissed the charges against
Northwestern and the NCAA once Northwestern changed some of its
policies.
For instance, Northwestern's team handbook used to say that social media
posts by football players may be "regularly monitored" by athletic department
and university ocials and campus police. Now it says publicly posted
information on social media "can be seen by any person with a smart phone
or internet access, including individuals within Northwestern University." The
university also removed a line stating concern about protecting its image due
to social media posts by players.
Northwestern's team handbook used to tell players, "You should never agree
to an interview unless the interview has been arranged by the athletic
communications oce. All media request for interviews must be made
through athletic communications." The rule now allows players the option of
referring the media member to the communications department or personally
speaking with the reporter.
The handbook used to instruct players: "Never discuss any aspects of the
team, the physical condition of any players, planned strategies, etc. with
anyone. The team is a family and what takes place on the eld, in meetings
or in the locker room stays with the family." The new rule limits the ban to
individual medical conditions, due to medical privacy laws. It allows players
to discuss "on a no-names basis about vital health and safety issues
impacting themselves, their teammates, and fellow collegiate football
players."
Said Huma: "The other thing that's important, as we've said from the
beginning, is college athletes deserve equal rights under the law to protect
themselves. We saw it play out in this incident. Northwestern changed its
rules based on the labor rights of its athletes."
Northwestern vice president for university relations Alan Cubbage said the
school disputes the NLRB general counsel's "assumption" that football
players are employees. Cubbage said Northwestern is committed to ensuring
the health and safety of athletes.
"We agree with the NLRB Advice Memorandum's statement that it would not
effectuate the policies and purposes of the (National Labor Relations Act) to
issue a complaint in this case and that the charges should be dismissed,"
Cubbage said in a statement.

The question moving forward is what precedent, if any, this decision may
have on private universities. Lawyers will inevitably dissect this opinion and
consider other challenges to the NLRB related to college sports.
"Technically, it's not the same as when the board rules a decision, but the
general counsel can get the ball rolling by the complaints that are made - sort
of like a prosecutor," said John Adam, who was the attorney for CAPA in the
original Northwestern case. "In our case, the board declined to exercise
jurisdiction to organize and collectively bargain. But that doesn't mean
they're not employees. I think the only way to interpret this advice
memorandum is a building block toward securing legal rights for players, at
least in the private sector."

C B S S P O RT S S H O P
Jon Solomon

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CBS Sports Senior Writer

College Football Playoff Gear

Jon Solomon is CBS Sports's national college football writer. A former Alabama
resident, he now lives in Maryland and also writes extensively on NCAA topics.
Jon previously worked at The Birmingham News,... FULL BIO

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