By R. Joseph Stennis

This morning at Northwestern University’s campus located in Evanston, Illinois, players from the school’s football team cast secret ballots to determine whether to form the nation’s first union for college athletes.  A total of seventy six football players were eligible to vote, but none were required to do so.  It is uncertain at this juncture how many of the seventy six eligible players actually voted.   For those players who did,  a majority of them must have voted in favor of unionizing and allowing the College Athletes Players Association (“CAPA”) to represent them for collective bargaining purposes.  The election stems from a ruling made by the NLRB’s regional director in its Chicago Office, Peter Sung Ohr, last month.   In his ruling, Mr. Ohr concluded that Northwestern University football players  presently on scholarship at the school are “employees” as that term is defined under the National Labor Relations Act and federal common law, and could therefore conduct elections to determine whether or not they want to be represented by CAPA.

Earlier this month, Northwestern appealed Mr. Ohr’s decision to the NLRB in Washington, D.C.  Yesterday, the Board granted Northwestern’s request for review and has ordereed that the ballots from today’s vote be impounded until it reaches a decision.  In its request, Northwestern is seeking a reversal of Mr. Ohr’s decision.  We will not know whether the players voted to unionize or not until and if the Board issues a decision approving the Regional Directors’ ruling that allowed the election to take place.  So, although today’s vote by Northwestern’s players was a historic moment for private college student-athletes, whether they ultimately will—or have the ability to— unionize is still very much uncertain.