In what is seen as a surprising decision, the five-member National Labor Relations Board announced Monday that Northwestern’s football players cannot become the first college team to form a union, as the board unanimously voted not to assert its jurisdiction in the matter.
However, the NLRB said that its decision does not “preclude reconsideration of this issue in the future.”
In a statement, a Northwestern spokesman said the school was “pleased” by the NLRB decision.
“Northwestern considers its students who participate in NCAA Division I sports, including those who receive athletic scholarships, to be students, first and foremost,” the statement continued. “We applaud our players for bringing national attention to these important issues, but we believe strongly that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes. We are pleased that the NLRB has agreed with the University’s position.”
The decision was a clear victory for the NCAA, as Northwestern’s players have no recourse for an appeal through the NLRB. Had the board affirmed a 2014 decision made by a regional director, it would have opened the door for players to unionize at many other universities and permanently altered the college-sports landscape. As the Chicago Tribune noted last week, “state labor boards traditionally have followed NLRB decisions.”
But in some states — such as Virginia — the state’s public employees do not have collective bargaining rights, meaning football players in those states would not be allowed to unionize no matter the NLRB’s decision. The NLRB cited such disparities as a reason behind its decision, saying a vote in favor of Northwestern’s players could tip the balance of power toward programs that were allowed to unionize.
However, the NLRB made it clear that it was not ruling on the central question brought up in the case: Should college athletes be considered university employees, especially those who generate substantial revenue?
Northwestern’s football players gained preliminary approval to unionize in March 2014 when Peter Ohr, the NLRB’s regional director in Chicago, ruled that they qualified as employees under federal law in part because of the revenue they generate for the school. The Wildcats then voted on whether they wanted to be represented by the College Athletes Players Association, or CAPA, a union financially backed by the United Steelworkers.
However, because Northwestern appealed Ohr’s decision to the main NLRB, the ballots were sealed until the appeal decision was announced. With Monday’s announcement that the Wildcats will not be allowed to unionize, those ballots will be destroyed, the Chicago Tribune reported last week.
The Tribune laid out the arguments each side made to the NLRB:
Northwestern has said its student-athletes are first and foremost students, and that the school’s primary commitment is to their education. It also has argued that collective bargaining is not the appropriate method to address concerns raised by football players.Among the union’s demands are financial coverage for former players with sports-related medical expenses, the creation of an educational trust fund to help former players graduate and commercial sponsorship compensation for players. CAPA has said it seeks to negotiate over health and safety issues and does not intend to push for “pay-for-play” wages, which are not allowed by the National Collegiate Athletic Association, a nonprofit that regulates college athletes of its member schools.In hearings last year by a regional officer of the NLRB in Chicago, CAPA argued that the players primarily have an economic relationship with the university.
Even if the NLRB had ruled in the Wildcats’ favor, it was unclear whether the results of the team’s vote would have favored unionization (a simple majority of the team’s 76 players was needed for passage). Northwestern Coach Pat Fitzgerald lobbied against it — “In my heart, I know that the downside of joining a union is much bigger than the upside,” he wrote in a letter to the team — and some players publicly said they would vote no.
In January, the schools that make up the NCAA’s five biggest conferences voted to allow college athletes to be paid cost-of-attendance stipends that cover more than tuition, room and board, and meals. The NCAA will distribute $18.9 million to the nearly 350 Division I schools — about $55,000 apiece — to help them cover the added expenses.
NCAA conferences also have moved to address some of the issues raised by Northwestern’s attempt to unionize. The Big Ten and Pacific-12 conferences now guarantee four-year scholarships (Northwestern has done so since 2011, according to Bloomberg News), and the Pac-12 guarantees medical coverage for athletes injured during competition for up to four years after graduation.
The NCAA cited these reforms in a statement that hailed the NLRB ruling as “appropriate.”
“This ruling allows us to continue to make progress for the college athlete without risking the instability to college sports that the NLRB recognized might occur under the labor petition,” it said.
Still, the NLRB’s decision was regarded as surprising in some corners. “This board, made up primarily of President Barack Obama’s appointees, is considered to be liberal and union-friendly,” USA Today writes.
Former Northwestern quarterback Kain Colter, who spearheaded the unionization movement, told the Associated Press that he was disappointed by the ruling but didn’t consider it a “complete loss,” saying the NLRB simply “punted the ball down the field.” Others agreed:
NLRB declining to recognize Northwestern as employees doesn't end the debate since NLRB didn't rule on the merits of the players' arguments.— Michael McCann (@McCannSportsLaw) August 17, 2015
Whether college athletes are employees & whether they can unionize will be Qs answered differently by individual states at different times.— Michael McCann (@McCannSportsLaw) August 17, 2015
Here’s the full ruling: