The Regional Director of Region 13 sought advice from the NLRB as to whether certain rules in Northwestern University’s Football Handbook were unlawfully overbroad in violation of Section 8(a)(1) of the National Labor Relations Act (“Act”).   NLRB concluded that rules in the Football Handbook set forth below were unlawful until they were modified in response to the charge filed.  Therefore, the NLRB advised the Region to dismiss the charge, absent withdrawal.

Social Media Policy

The Social Media Policy “would reasonably be construed as prohibiting Section 7 activity.”   The following text is the language at issue:

[W]e are concerned about… protecting the image and reputation of Northwestern University and its Department of Athletics and Recreation. . . .

Publicly posted information on social networking websites can be seen may be regularly monitored by any person with a smart phone or internet access, including individuals a number of sources within Northwestern University (e.g., Athletics Department, Student Affairs, University Police). . . .

Northwestern student-athletes should be very careful when using online social networking sites and keep in mind that sanctions may be imposed if these sites are used improperly or depict inappropriate, embarrassingharassing, unlawful or dangerous behaviors such as full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment, unlawful activity or any content that violates Northwestern University, Athletics Department or student-athlete codes of conduct and/or state or federal laws.

….

Do not post any information, photos or other items online that contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity could embarrass you, your family, your team, the Athletics Department or Northwestern University.

….

Examples of inappropriate or offensive behaviors posted on social networking sites may include….Photos meant to harass, bully or demean the individuals included in the photo by offensive reference to their race, sex, disability, age, national origin, religion or any other status protected by law or Northwestern University policy.

The stricken text of the rules cited represent Northwestern University’s deletions and the bold text represents Northwestern University’s additions to the rules.

Sports Medicine & Player Policy Communication Rule

The Sports Medicine & Player Policy Communication Rule “would reasonably be construed to prohibit Section 7 activity, including discussions about vital health and safety issues.”   The following text is the language at issue:

1. Confidential: 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 field, in meetings or in the locker room stays within this family.

Protecting Personal Health Information: Based on privacy considerations associated with medical conditions and the need to ensure that teams with whom we compete do not obtain medical information about our student-athletes, you should not reveal the medical conditions or injuries to persons outside the Northwestern University football team and staff. This restriction does not apply to information that is generally known and available to the public, nor does it prohibit student athletes from discussing general medical issues and concerns with third parties provided that such discussions do not identify the physical or medical condition or injury of specific or named student athletes.

2. Keep our information private.

The stricken text of the rules cited represent Northwestern University’s deletions and the bold text represents Northwestern University’s additions to the rules.

The modified rule provides in part that the provision does not prohibit football players from “discussing general medical issues and concerns with third parties provided that such discussions do not identify the physical or medical condition or injury of specific or named student athletes.” That modification struck the proper balance of maintaining players’ confidentiality and protecting football team information while at the same time allowing players to speak out on a no-names basis about vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players.

Student-Athlete Rights and Responsibilities (Dispute Resolution Procedure)

The Dispute Resolution Policy “would reasonably be construed as prohibit Section 7 activity by prohibiting discussions with fellow players and third parties concerning workplace grievances.” The following text is the language at issue:

Within the intercollegiate athletic program, all decisions directly related to the playing field are the province of the head coach, and all decisions are final. In the event a student-athlete has a complaint or grievance concerning personal rights and relationships to the athletic program, the following procedure may be used:

1. The student-athlete should discuss the issue with Cody Cejda.

2. If the issue is not resolved, the student-athlete and captain(s), if applicable, meet with the head coach.

3. If the issue continues to be unresolved, the student-athlete meets with the Senior Associate Athletic Director for Intercollegiate Services. At this point, the student-athlete may bring another person to the meeting as an observer. A written summary of the meeting will be prepared and submitted to the Athletics Director and the student-athlete. The student-athlete may also appeal directly to the Athletics Director.

4. The Faculty Committee on Athletics and Recreation (CAR) is the next and usually final step. CAR’s decision may be appealed to the President of Northwestern University, Morton O. Shapiro.

Northwestern University eliminated this rule from the Football Handbook.

Athletic Communications for Student Athletes Rule

The Athletic Communications for Student Athletes Rule “would reasonably be construed as prohibiting Section 7 activity.” The following text is the language at issue:

THINGS TO REMEMBER DURING AN INTERVIEW       

**** PLEASE NOTE: As responsible student athletes, you may directly speak with members of the media if you choose to do so. You should never agree to an interview unless the interview has been  arranged by the athletic communications office. All media request for interviews with student athletes must be made through athletic communications. If you are contacted directly by the media (this includes The Daily Northwestern or any other student media outlet), you have the option of referring the media representative you should politely, but firmly, redirect the reporter to the athletic communications office for a response or to personally speak with the media representative. Please be aware that Wwe will never give out your cell phone number to the media. This protects your privacy and as well as avoids interruptions of your time. ****

In dealing with the media, you should be aware of and consider the following:

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• Be positive when talking about your teammates, coaches and team. Share credit for your success by talking about the contributions of Praise your teammates and use their names. Remember that Eevery great running back needs a good offensive line. Every high scorer needs teammates who can pass the ball. Talking about the great work of others shows you have confidence in your own role and the value of your own contributions, so you’re not afraid of letting someone else have their moment of glory, too. Avoid the negatives, as they breed discontent and trouble.

The stricken text of the rules cited represent Northwestern University’s deletions and the bold text represents Northwestern University’s additions to the rules.

Northwestern University modified the rule to clarify that student-athletes may choose to speak directly to the media and have “the option of referring the media representative to the athletic communications office” or players could choose to speak with that representative themselves. Accordingly, the current rule is lawful as written.

Revisions to the Football Handbook and Conclusion

Although Northwestern University has revised the Football Handbook in an attempt to remedy the unlawful provisions, the NLRB concluded, and Northwestern University conceded, that these revisions alone do not adequately repudiate the unlawful handbook rules under the Board’s Passavant standard. Nevertheless, the NLRB determined that it would not effectuate the policies and purposes of the NLRA to issue complaint in this case.  Accordingly, the Region should dismiss the charge, absent withdrawal.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.comThis e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spambots. You need JavaScript enabled to view it .