The National Labor Relations Board halted the unionization efforts of Northwestern’s football players in a unanimous decision Monday, dismissing the players’ petition and handing a major victory to the NCAA and universities trying to preserve the longstanding structure of college athletics.
The board opted not to exert its jurisdiction in the case and declined to address whether student-athletes are akin to university employees. In its ruling, the board explained that had it rendered a more weighty judgment or supported a decision made last year by an NLRB regional director that football players are school employees, the complicated system of college athletics could be compromised. Allowing Northwestern’s football team to unionize “would not promote stability in labor relations,” the board said.
“The NCAA’s oversight renders individual team bargaining problematic,” the ruling stated.
“They’ve essentially said, ‘On policy grounds, we don’t think it’s appropriate to touch this today,’ ” said Steven Bernstein, a Tampa-based attorney who specializes in labor issues. “For lack of a better word, this represents the board’s attempt to punt. It’s a quick kick on third and long.”
Monday’s ruling cannot be appealed, and Northwestern players’ only recourse might be an uphill battle through the legal system. The ruling gave no opinions on the NCAA, the fairness of the current system of college athletics or amateurism in general, but it allows the NCAA to continue its business as usual, removing one major threat to the status quo.
“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,” Donald Remy, the NCAA’s chief legal officer, said in a statement.
While the NCAA was not a defendant in the case, the governing body for college sports has been besieged in recent months in courtrooms and in the media for a system that generates billions of dollars in revenues but rewards its workforce with only scholarships.
“They come out stronger through this,” Bernstein said. “There’s a deference that’s been implicitly paid to the NCAA. The board is saying is, ‘They’d do a better job of policing these institutions. This is what they’ve been created to do, and we’re going to let them continue to do that.’”
By avoiding the merits of the Northwestern case and ignoring the central question — Are college athletes actually university employees? — the board left open the door for others to file similar petitions. It also left open the possibility that the NLRB could revisit the issue in the future, noting the shifting landscape of college sports and many calls for reform.
Northwestern players initially filed an election petition with the NLRB's Chicago office in January 2014. The national board on Monday did not technically overturn or refute the initial decision handed down last year by the NLRB regional director, Peter Ohr, who ruled that the scholarship players are, in fact, university employees and can vote to unionize. “It cannot be said that the employer's scholarship players are ‘primarily students,’” Ohr ruled.
College athletic officials and observers have been awaiting Monday’s ruling, certain the impact could extend beyond the Northwestern campus. State labor boards generally recognize and follow the decisions by the national board, which meant a door could be cracked open for athletes at other private schools across the country to follow suit.
While the case might have set an intriguing precedent, its scope was always limited to private colleges. Public universities are subject to state laws, and the NLRB only has jurisdiction over the private sector.
In issuing its decision, the NLRB made clear that it was ruling solely on the “novel circumstances” of the Northwestern case, and “in the absence of any evidence concerning the players and athletes at other schools, we do not decide any issues about them today.”
“If you want to shut the door completely, you say, ‘These folks, in our view, aren’t employees,” said Washington attorney Brian Hayes, a former NLRB member. “Then you don’t have statutory jurisdiction over them. What they said instead was, ‘We’re not going to address that issue,’ so that leaves the doors open.”
The ruling noted that public universities comprise the vast majority of Football Bowl Subdivision programs — 108 of 125 — and because they’re all part of different conferences, asserting jurisdiction over a single team at a single school would have ramifications to programs that aren’t subject to collective bargaining or NLRB rulings.
Daniel Johns, a Philadelphia-based attorney who specializes in labor and employment law, said while the wording in Monday’s ruling seems receptive to players from multiple teams or schools combining forces and filing a similar petition, such an effort would be cumbersome. Athletes in different sports from different campuses playing in different conferences contend with a variety of issues and “don’t always have a ton in common,” Johns said.
The Northwestern football team held its regularly scheduled practice Monday, unremarkable with the exception of a post-practice watermelon-eating contest among freshmen.
“They have displayed maturity beyond their years through this process,” Northwestern Coach Pat Fitzgerald said in a statement, “and the experience has unquestionably brought us closer together as a football family.”