For a moment in college football history, student football players at Northwestern University (NU) were deemed “employees” with the right to unionize under the National Labor Relations Act (NLRA). But that moment is over — at least for now.
A regional director for the National Labor Relations Board (NLRB) previously ruled that football players at NU were employees eligible to vote on whether to form a union. However, after the election but before the votes could be counted, the full NLRB in Washington D.C. impounded the ballots to consider an appeal by NU.
Rather than decide whether the football players are employees with union rights, the NLRB made an end-run around the question by declining to assert jurisdiction — a decision effectively denying the players the right to unionize under the NLRA. “Our decision,” the NLRB explained, “is primarily premised on a finding that … it would not promote stability in labor relations to assert jurisdiction.”
Observing that since the National Collegiate Athletic Association (NCAA) sets and enforces common rules and standards of practice and competition over NU and other member teams, as well as individual players, “a symbiotic relationship” exists among them.
“As a result,” the Board reasoned, “labor issues directly involving only an individual team and its players would also affect the NCAA … and the other member institutions. Many terms applied to one team therefore would likely have ramifications for other teams. Consequently, it would be difficult to imagine any degree of stability in labor relations if we were to assert jurisdiction in this single-team case.”
Additionally, the Board noted that although NU is a private university covered by the NLRA, the Act does not cover state-run educational institutions, which means the NLRB cannot exercise jurisdictions over sports teams at these other NCAA-member schools.
“In particular, of the roughly 125 colleges and universities that participate in FBS [Division I Football Bowl Subdivision of the NCAA], all but 17 are state-run institutions. As a result, the Board cannot assert jurisdiction over the vast majority of FBS teams …. More starkly, Northwestern is the only private school that is a member of the Big Ten [Conference of the NCAA], and thus the Board cannot assert jurisdiction over any of Northwestern’s primary competitors.”
Still, the NLRB left the door open to revisit the issue for players’ groups larger than a single team, or under different circumstances: “[W]e are declining jurisdiction only in this case involving the football players at Northwestern University … The Board’s decision not to assert jurisdiction does not preclude a reconsideration of this issue in the future.” [Northwestern University v. College Athletes Players Association (2015) 362 NLRB No. 167]