The National Labor Relations Board punted.
After a regional NLRB director told Northwestern University football players they could unionize, the full board shut down the push Monday without debating the central issue: are college athletes employees?
The NLRB said the Northwestern players couldn’t unionize because it would affect universities outside the board’s jurisdiction and possibly give some schools a competitive advantage.
But leaving the athlete/employee question unanswered could help future groups of college athletes with their own organization.
“If another school’s athletes say we want to unionize, they’re leaving the door open,” said lawyer Scott Schneider, head of the higher education practice group at national labor law firm Fisher & Phillips.
The board likely felt that college athlete unionization would be better served by a ruling with a wider scope, Schneider said.
By issuing such a noncommittal ruling, the board is saying, “Allowing Northwestern University players to unionize wouldn’t have accomplished anything,” he said.
Labor experts say this situation is exceedingly rare.
“I can’t think of too many high-profile cases,” said Bob Bruno, a professor of labor and employment relationships at the University of Illinois.“It surprised me that [the board] chose not to find jurisdiction.”
“They appear to be deferring this right to unionize not on a basis of what one would typically expect — not whether the employees are eligible employees under the law — because they don’t rule on that,” Bruno said.
OPINION State of the union: NLRB reminds NU football players of their place
The board gave its final word on the players’ case in a decision released Monday morning. Northwestern filed an appeal with the national board last year after a regional NLRB director in Chicago ruled the players were employees who receive scholarships as a form of pay and ordered a union election.
The core of the board’s decision centered on the idea that granting Northwestern football players the right to unionize would set different standards for practice, pay and other conditions at union and non-union schools.
The board’s decision only applies to private schools – public school employees work for the state – and Northwestern is the only private school in the Big Ten Conference, the NLRB pointed out.
“There is … a symbiotic relationship among the various teams, the conferences, and the NCAA,” the board wrote in its decision.
“As a result, labor issues directly involving only an individual team and its players would also affect the NCAA, the Big Ten, and the other member institutions,” it said.
Northwestern University said it was “pleased” by the ruling.
“As the university has stated previously, Northwestern considers its students who participate in NCAA Division I sports, including those who receive athletic scholarships, to be students, first and foremost,” said Alan Cubbage, Northwestern’s vice president for media relations.
The NCAA said the ruling was “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 in a prepared statement.
The NCAA has come under fire for punishing athletes for accepting any sort of compensation or gifts while conferences and schools earn millions from the their talents.
The NCAA recently cleared the way for the five biggest conferences, including the Big Ten, to add player stipends to help athletes defray some of their expenses. Southeastern Conference schools, for example, will give some athletes $3,000 to $5,500 each on top of a scholarship that pays for tuition, room, board and books.
Northwestern, the Big Ten and the NCAA all argued against the unionization effort, saying that lumping college athletes into the same category as factory workers would change amateur athletics for the worse. At one point, Northwestern administrators sent a document to players outlining potential pitfalls, noting that player strikes could lead to the spectacle of replacement players.
It is unclear what scenario would lead the NLRB to reconsider the issue, but player advocates say the fight for college athletes’ rights isn’t over.
“This is not a loss, but it is a loss of time. It delays players securing the leverage they need to protect themselves from traumatic brain injury, sports-related medical expenses, and other gaps in protections,” College Athletes Players Association President Ramogi Huma said in a statement.
The College Athletes Players Association would have served as the scholarship football players’ union had the board upheld the regional ruling.
Former Northwestern quarterback Kain Colter, who began the team’s push for unionization in January 2014, said in a statement “the fight for justice will continue.”
“College athletes everywhere should take note. A few dozen 18- [to] 21-year-old Northwestern football players joined together to challenge an unjust system and are forcing change. It’s simple. As players stand up, injustice falls down,” Colter said.
- Jan. 29, 2014: Then-Northwestern quarterback Kain Colter and the United Steelworkers announce plans to create the first union for college athletes at the school north of Chicago. Colter calls the NCAA a “dictatorship.”
- Feb. 12, 2014: The National Labor Relations Board begins several days of hearings in Chicago on whether to declare Wildcat football players university employees — the first critical step toward unionization.
- March 26, 2014: NRLB Regional Director Peter Ohr issues a landmark ruling that Northwestern football players are university employees under definitions in federal law, opening the door for them to unionize.
- Early April 2014: Pro-union athletes set an April 25 date for scholarship football players at Northwestern to vote on whether to unionize.
- April 4, 2014: A United Steelworkers official, Tim Waters, says players from other universities have been in touch with the Steelworkers and expressed interest in forming unions at their schools.
- April 5, 2014: Northwestern football coach Pat Fitzgerald publicly calls on his players to vote against forming a union.
- April 9, 2014: Northwestern appeals the regional director’s ruling that college football players are university employees to the NLRB’s office in Washington, D.C.
- April 25, 2014: Northwestern football players cast secret ballots on unionization. But the ballots boxes are sealed until the appeals process on the NLRB decision plays out.
- Aug. 17, 2015: The NLRB in Washington throws out the regional director’s 2014 ruling, concluding that having both union and nonunion teams could lead to different standards at different schools and create competitive imbalances throughout college sports.