NLRB puts June 26 deadline on filing briefs in Northwestern union ruling

Northwestern football players Chi Chi Ariguzo (left) and Traveon Henry voted on whether to unionize back in April, but their votes won't be counted until the NLRB determines whether they actually have the right.

David Banks/David Banks-USA TODAY Sports

Federal officials on Monday established a two-month window for the filing of legal briefs they will consider as they decide whether to uphold, modify or overturn a hearing officer’s ruling that concluded Northwestern football players are employees of the school and can form a union.

That ruling, issued earlier this year, led to an April 25 vote by scholarship members of Northwestern’s football team on the question of whether they wanted to become members of the College Athletes Players Association for the purpose of collective bargaining.

The ballots were not counted, pending a decision by the National Labor Relations Board whether to change, overturn or let stand a hearing officer’s ruling that called for the football players to have the right to unionize.

In announcing its timeline Monday, the labor board gave the parties to the case – representatives of the players and the school – until June 26 to file legal briefs, which are limited to 50 pages. Interested outside parties may also file briefs by that deadline that are limited to 30 pages.


In addition, the parties to the case may file briefs responding to the first batch of legal filings until July 10.

The question of whether the football players could unionize came to a head with a March 26 decision by Peter Ohr, the labor board’s regional director. He ruled that football players at Northwestern who are on schlarships are employees of the school and can form a union for the purpose of collective bargaining.

Among the reasons he cited in his ruling was the amount of time football players devote to the game – in many cases, more time than they spend on classwork – and the fact that the athletic program is run like a business and generates revenue.

Backers of the union movement have said they would not seek outright pay for the players but would push for things such as funding for medical treatment and to help players who have exhausted their eligibility but not graduated finish the classes they need to earn a diploma.


Northwestern’s attorneys filed an appeal – officially known as a "request for review" – asserting that Ohr "misapplied and departed from officially reported board precedent" and that his findings contained repeated errors in the interpretation of the facts of the case.

Ohr’s decision opened another front in a burgeoning question of whether college athletes – particularly in football and men’s basketball – should be compensated in some way beyond a full-ride scholarship, known as “grant-in-aid.” The question centers on one fact: Those two sports annually generate billions of dollars in revenue.

On April 24 – the day before the union vote – the full NLRB agreed to review Ohr’s ruling.

In the notice made public Monday, the labor board told those who intend to file briefs that they were free to address any of a series of questions about the issue.

Among them: “What test should the board apply to determine whether grand-in-aid scholarship football players are ‘employees’ ” under the National Labor Relations Act.

In his decision, Ohr noted the various aspects of the football program that are business-like and also pointed to the amount of time football players devote to their sport – 50 to 60 hours a week during the month before the season starts and 40 to 50 hours a week during the season. Taking that into account, he rejected one of Northwestern’s arguments that the players are "primarily students" and concluded that they are actually employees who provide a valuable service in exchange for compensation – their scholarships.

In Northwestern’s appeal, the school’s attorneys called Ohr’s decision "unprecedented" and asserted that he "set out to alter the underlying premise upon which collegiate varsity sports is based.”

Other challenges to the current system also loom.

Two pending federal lawsuits have accused the NCAA and its five largest conferences of violating anti-trust law and seek to abolish the rules that limit compensation to players at the cost of a scholarship.

And while the leaders of the union movement at Northwestern have said they don’t anticipate pushing for outright pay for players, the outcome of the case could dramatically alter the landscape.