NLRB punts on college football player unionization

Dec 16, 2015

In a widely anticipated decision announced on August 17, the National Labor Relations Board (NLRB) unanimously voted to dismiss a petition seeking union representation for Northwestern University football players on scholarship. The decision, issued more than a year after the parties completed briefing in the case, amounted to a reversal of an April 2014 decision by the NLRB’s Chicago regional director that had held the players were employees of the University and were entitled to seek union representation.

That April 2014 decision had relied on the monetary value of big-time college football scholarships and the degree of control over players”™ lives to reach the conclusion that the term “student-athlete” was something of a misnomer, and that the scholarship players should have all the unionization rights of other private employees. Depending on your perspective, the April 2014 decision was either a sign that the law was finally catching up with the sham of NCAA amateurism, or a serious error that ignored players primary roles as students and which would have major unintended consequences.

Interestingly, and in a move that surprised some commentators, in the August 2015 decision, NLRB declined to reach the merits of the case. Instead, the NLRB declined to assert jurisdiction in the case on the ground that it “would not serve to promote stability in labor relations.” As the NLRB only covers private employers, the NLRB held in the instant case that it would not promote the policies of the National Labor Relations Act to exercise jurisdiction even if the NLRB were to decide the key question – are the players employees? – in the affirmative. In support of this conclusion, the NLRB cited the fact that even in Northwestern’s own conference, the Big 10, Northwestern is the only private institution and thus the only institution in its conference that would have been subject to unionization if the representation had been allowed to proceed. Or, as the NLRB put it, it would not have been able to exercise jurisdiction over the Northwestern Wildcats”™ “competitors.”

In both its decision and an accompanying press release, the NLRB goes to great pains to make clear that it really isn”™t addressing the merits of the case and that it reserves the right to revisit the issue in the future. In fact, the decision is notable for its reticence in that the NLRB appears to spend the majority of its 7-page decision explaining the issues it is not deciding.

Given that the Northwestern players are unable to appeal the NLRB’s decision, the August 17 dismissal effectively ends the matter – for now. Some commentators are already trying to predict what the next step in the collegiate sports labor movement might be. For the time being, however, the August 17 represents a hard tackle that threatens to put that movement on the sidelines.