The National Labor Relations Board (NLRB), in a recent Advice Memorandum (NLRB Case No. 13-CA-157467), has effectively ended the closely-watched enforcement action against Northwestern University on whether certain intercollegiate student-athletes are statutory employees for purposes of the National Labor Relations Act.

The NLRB had declined in August 2015 to assert jurisdiction over a representation petition filed by the College Athletes Players Association to represent the grant-in-aid scholarship student-athletes at Northwestern, Northwestern University, 362 NLRB No. 67 (2015). In that decision, the NLRB, while assuming without deciding that scholarship student-athletes were statutory employees, determined that asserting jurisdiction over the student-athletes “would not promote stability in labor relations.” The decision, in large part, was based on the fact that “of the roughly 125 colleges and universities that participate in FBS football, all but 17 are state-run institutions.” By statute, the NLRB does not have jurisdiction over government entities. The NLRB also noted that “Northwestern is the only private school that is a member of the Big Ten” athletic conference.

The NLRB might decide differently if those “stability of labor relations” considerations are not present in an unfair labor practice case at a private college or university where considerations of collective bargaining and a possible competitive imbalance with public institutions playing in the same league may not be present.

Still an open question, however, is whether the University had engaged in unfair labor practices for policies that restricted student-athlete social media postings. An October 2016 memorandum by the Division of Advice of the Office of the General Counsel – the NLRB’s prosecutorial arm – recommended that the General Counsel not issue an unfair labor practice complaint against Northwestern University or the NCAA over the restrictions, which, it was argued, interfered with the ability of student-athletes to communicate regarding safety concerns and other issues relevant to collective bargaining. The recommendation was based on several factors: the policies had been revised and the revisions communicated to the players, the University had no history of prior similar unfair labor practices, and there was no likelihood of repetition of the rules.

However, as the NLRB again did not decide if scholarship student-athletes are statutory employees subject to its jurisdiction, the question remains whether the NLRB might find grant-in-aid scholarship students-athletes to be statutory employees and assert jurisdiction over them in another unfair labor practice case.

In the Advice Memorandum, the Division also “assume[d], for purposes of this memorandum, that Northwestern’s scholarship football players are statutory employees.”

It is not currently clear whether the October 2016 memorandum will affect how the NLRB might approach a future petition for representation of intercollegiate student-athletes. In an unfair labor practice case, the allegations and, more importantly, any remedy are typically limited to one employer. In another unfair labor practice case involving a private college or university, perhaps one that has not revised allegedly unlawful policies or has taken disciplinary action against a scholarship student-athlete allegedly in retaliation for the player having engaged in protected concerted activity under Sec. 7 of the NLRA (such as advocating for player safety measures), the NLRB may determine that any remedy would not have a negative impact on the “stability of labor relations” because there may not be a spillover effect to the competitive playing field.

The chief consideration relied upon by the NLRB in not asserting jurisdiction in Northwestern Univ. would be absent, and NLRB may feel free to consider the fundamental question whether scholarship-athletes are statutory employees and decide to assert jurisdiction. (The NLRB may also consider doing so in a representation case in which all the members of the league are private institutions, such as the Big East conference in basketball.)

The General Counsel of the NLRB is the office that decides which unfair labor practice cases to litigate. There is no indication the General Counsel has decided that scholarship student-athletes are not statutory employees.

In fact, by referring the Northwestern case to the Division of Advice, it might suggest that whether a scholarship student-athlete is an employee is very much in play for the General Counsel.

In a different case—at Northwestern or another private college or university—the General Counsel may decide to issue an unfair labor practice complaint and urge the NLRB to decide the core issue. The NLRB, for its part and recognizing that less than 7% of private sector employees are represented by a labor union, may be receptive. Until the NLRB decides that scholarship student-athletes at private institutions are not statutory employees, the possibility that it may do so in an appropriate case remains.