August 17, 2015 by peterott
NLRB Rejects Northwestern Unionization Effort
Today, the National Labor Relations Board made a surprising decision that was actually a bit of a non-decision. The Board unanimously ruled that it could not rule on the issue of college athlete unionization because labor law only allows the Board to look at private-sector workplaces and only 17 of the 125 schools eligible to play in a college football bowl are private universities. The Board says that “asserting jurisdiction over a single team would not promote stability in labor relations across the league.” This decision has the practical effect of preventing Northwestern University football players from being able to unionize.
The decision came down a couple of hours ago, as of writing. It has already been written about by CNN, ESPN, NPR, the New York Times, and many other news sources. Dave Zirin, sports editor for the Nation, wrote a stinging indictment of what he calls a cowardly decision. Representative Jan Schakowsky of the Illinois 9th Congressional District (which includes Northwestern University) wrote for the Huffington Post, making clear that she disagrees with the decision. Sports lawyers such as Exavier Pope have written posts criticizing the arguments employed by the NLRB in dismissing the unionization effort. In particular, the NLRB’s argument that asserting jurisdiction in this case would hurt stability in labor relations in college football seems particularly weak. College football is not currently very stable or balanced, and athletes at other schools could seek to unionize as well.
Not everyone is displeased by this decision. It is a victory for the NCAA and Northwestern University. This decision prevents Northwestern football players from unionizing and thus from gaining the ability to collectively bargain with the school and potentially extract concessions (such as a salary or an improved concussion protocol) from the school. Removing the possibility of unionization removes what Northwestern football coach Pat Fitzgerald characterized as a “distraction” that hung over the team last year. And interestingly, because of this decision, the previous vote of the football team about whether to unionize or not will never be made public. It is possible that the team voted against unionization, making the issue moot even if the NLRB had allowed them to unionize.
Kind of a bummer that the #Northwestern union votes will be destroyed. I was 80% certain it would have been a 'no.' Was curious, tho.
— Teddy Greenstein (@TeddyGreenstein) August 17, 2015
The College Athletes Players Association (CAPA), an advocacy group for college athlete rights, issued a press release characterizing the decision as a delay rather than as a loss in their fight for enhanced rights for college athletes. Certainly, this decision does not signal the end of legal fights on behalf of college athletes or even answer the ultimate question of whether college athletes can unionize. Noted sports law analyst (and UVA Law alumnus) Michael McCann noted that this doesn’t end the debate, since the NLRB did not rule on the merits of the case.
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
And there are numerous other challenges to the current structure of NCAA sports that are completely independent of the idea of unionization. Perhaps the most notable one is NCAA v. Jenkins, an antitrust case being brought by noted sports lawyer Jeffrey Kessler, which characterizes the NCAA and its member institutions as a cartel restraining the rights of college athletes. This challenge, if successful, would fundamentally change the structure of college sports and allow colleges to compete for the services of athletes based on the labor market, like employers of most workers (i.e. janitors, lawyers, and businessmen) do everyday.
The NCAA issued a press release praising the NLRB’s decision. However, PoliticoPro reporter Allie Grasgreen noted that the press release characterizes athletes as “college athletes” rather than using its usual formulation as “student-athletes”, which could have a potential unintended consequence:
Jeffrey Kessler taking notes for his case. https://t.co/g5KLIuRcD8
— Exavier Pope (@exavierpope) August 17, 2015
The NCAA has constantly argued that its athletes are students first and athletes second; hence the formulation of the term “student-athlete.” This change of terminology could aid Kessler in his argument that these athletes are actually primarily at the schools as athletes, rather than as students. That’s just one thing out of many to keep an eye on in the future.