The Northwestern University Football Case: A Dissent

Harvard Journal of Sports & Entertainment Law, (Fall 2019 Forthcoming)

U Denver Legal Studies Research Paper No. 19-02

27 Pages Posted: 11 Mar 2019 Last revised: 14 Feb 2020

See all articles by Roberto L. Corrada

Roberto L. Corrada

University of Denver - Sturm College of Law

Date Written: March 1, 2019

Abstract

In 2015 the National Labor Relations Board (NLRB or Board) said no to a union election petition filed by the Northwestern University football team. In doing so, the Board reversed the finding of a regional director below that the requirements of a valid petition were met, including a finding that the Northwestern football players were employees for purposes of the National Labor Relations Act (Act). Strangely, the Board on appeal did not hold that the football players were not employees, or that Northwestern was not an employer, or that the football team did not substantially affect interstate commerce. These are all of the typical reasons that the Board might say no to an election petition and decline jurisdiction. Rather, the Board refused to assert jurisdiction even though it admitted that Northwestern football players might be employees, Northwestern University is certainly an employer, and the Northwestern football team has a substantial effect on interstate commerce. Without much explanation, the Board simply stated that asserting jurisdiction would undermine labor stability and thus be inconsistent with the goals of the Act.

Curiously, there was no dissenting opinion despite the substantial findings of fact by the regional director finding the petition valid, and despite the fact that the decision was appealed to the liberally controlled Obama Board. This essay is the first substantive critique of the NLRB’s decision in the case. The essay looks carefully and deeply at each of the stated, as well as the unstated but implied, reasons for the decision. What the essay reveals is an administrative agency decision that neglects to make critical findings and arguments in support of the agency’s position against the petition. Also, the essay uncovers a flaw in the Board’s understanding of the limited scope of its discretion to decline jurisdiction in instances where the entity involved has a substantial effect on commerce. Essentially, this essay is the missing dissenting opinion in the case.

Suggested Citation

Corrada, Roberto L., The Northwestern University Football Case: A Dissent (March 1, 2019). Harvard Journal of Sports & Entertainment Law, (Fall 2019 Forthcoming); U Denver Legal Studies Research Paper No. 19-02. Available at SSRN: https://ssrn.com/abstract=3349403 or http://dx.doi.org/10.2139/ssrn.3349403

Roberto L. Corrada (Contact Author)

University of Denver - Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
61
Abstract Views
535
rank
371,117
PlumX Metrics