(Photo: Michael Barera via Wikimedia Commons.)

Football players at Northwestern University will vote today whether to unionize, but the ballots won’t be counted until the five politically appointed members of the National Labor Relations Board decide if the student-athletes are in fact university employees.

The NLRB was under no obligation at this point in the proceedings to review the March 26 decision by a regional director allowing the election. However, labor lawyers said they were not surprised that the members opted to make their position clear on such a high-profile issue sooner rather than later.

“Given the really unique circumstances … I think they have to,” said Gerald Lutkus, a labor and employment partner at Barnes & Thornburg.

Lutkus predicted the board would “rubber stamp” the decision by regional director Peter Ohr, who held that 85 football players on scholarship at the private university in Evanston, Ill., are employees and can vote to unionize. “There’s no doubt in my mind, given the composition of the board, that they will find the players to be employees,” Lutkus said.

Other labor lawyers aren’t so sure. Ohr’s decision conflicts with a prior holding by the board that graduate assistants at Brown University aren’t employees and can’t unionize, said Tyrone Thomas, of counsel to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. “I expect it will be a close call … but I do not expect them to uphold” the Northwestern decision, he said. “It’s a hard question how to reconcile Brown with the underlying ruling.”

Ohr determined athletic scholarships “are compensation for the athletic services [players] perform for the employer.” Northwestern’s football program, he noted in his ruling, generated $235 million in revenue from 2003 to 2012. “It cannot be said that the employer’s scholarship players are ‘primarily students,’ ” Ohr wrote.

The NLRB announced that the players ballots will be impounded “until the board issues a decision affirming, modifying or reversing the regional director’s decision.”

Foley & Lardner partner Jonathan Israel said the board may have decided to rule before the votes are counted because “maybe they think the union won’t win.” If the players vote against unionizing, the board might never have a chance to opine on whether or not they’re employees. “There may be some motive to get the board’s stamp on it sooner rather than later,” he said.

The board’s decision is not directly appealable. If the NLRB members rule that the players may unionize and the players vote to do so, Northwestern can then refuse to bargain with the union.

At that point, the university would be hit with unfair labor practice charges and would have a hearing before an administrative law judge. The judge’s decision would be reviewed by the board, and only then could the board’s decision be appealed to the U.S. Court of Appeals for the Seventh Circuit or the D.C. Circuit.

Given the timeframe, “Every kid who votes in this election could be gone before there’s a final determination,” Lutkus said.

Contact Jenna Greene at jgreene@alm.com. On Twitter @jgreenejenna.