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NLRB Rules on Northwestern Football Players’ Union Petition

September 15, 2015

By Noah R. Jordan, Esq.

On Monday August 17, 2015, the National Labor Relations Board (NLRB) issued its much anticipated decision regarding a representation petition filed by the College Athletes Players Association (CAPA) on behalf of grant-in-aid scholarship recipients playing for the Northwestern University football team.   Last March, the Regional Director in Region 13 issued a decision finding the petitioned-for unit to be employees within the meaning of Section 2(3) of the National Labor Relations Act.  The Board declined to assert jurisdiction in the case, meaning that CAPA’s efforts to organize the players, at least for now, is not going to be successful.

As is all too often the case, the media pounced at the ruling as an opportunity to declare it to be a massive blow to the movement to organize college athletes and a defeat to organized labor as a whole.  The hyperbolic headlines that popped up on sports and news web pages as soon as the ruling was handed down were followed by breaking news stories which, if read without first having read the Board’s actual ruling, would lead one to believe that the Board had issued a clearly definitive decision found to be entirely damning to CAPA and its supporters.  Such prognostications, however, are quite far from the truth.

In order to truly and fully understand exactly what the Board’s decision means, one must understand both what the Board did decide as well as what it declined to weigh in on.  First of all, as stated above, the reason why the Regional Director’s decision was not upheld was because the Board declined to assert jurisdiction.  This does not mean that the Board found the Regional Director’s decision to be wrong, nor is it a determination that grant-in-aid football players at Northwestern University are not employees under the meaning of Section 2(3) of the Act.  This, of course, was the key issue to determine whether or not the players could unionize.  Since the Board did not answer definitively this question, it remains unresolved.

Instead of addressing the student vs. employee issue, the Board noted that even when it has the statutory authority to act, as it did in this matter, it can choose to decline to do so when “the policies of the Act would not be effectuated by its assertion of jurisdiction in that case.”  By taking this route, the Board left the door open to considering a future petition by grant-in-aid scholarship athletes.

The question then remains: what does this decision mean moving forward?  It cannot be denied that this undoubtedly is a setback for CAPA as well as its supporters within the organized labor movement.  Had the Board ruled to uphold the Regional Director’s decision, it would have paved the way to count the ballots cast last year by the scholarship athletes on the Northwestern football team and opened the doors for other similarly situated athletes at Northwestern and other private schools to vote to unionize.  The decision means that the votes that were cast will not be counted and we never will know whether CAPA had enough votes in its favor.

However, it is not all bad news for those who support the rights of college athletes to organize.  The Board identified two major areas of concern which present both challenges as well as opportunities to CAPA and other unions seeking to represent scholarship athletes.

First, the Board noted that the vast majority of colleges and universities competing in FBS football (commonly referred to as Division I), are state-run institutions.  The NLRB has jurisdiction over only private employers.  Therefore, if the athletes at these public institutions wanted to organize, they would have to do so by going through a state labor board.  This was the main problem the NLRB saw in asserting jurisdiction over the case; if it did so, it would risk promoting instability in the labor force because the decision would not apply to most grant-in-aid scholarship football athletes, leaving these individuals in a legal purgatory.  Further complicating this is the fact that each state has different labor laws and, therefore, rights of athletes to organize would be different depending on where they play.  While this clearly complicates what next steps should be taken by unions, the Board’s decision can be read as an invitation for unions to attempt to organize players at public institutions through state labor boards.  Because the majority of players, if found to meet the definition of employees, would be state employees, organizing this way would be much more likely to promote stability and uniformity in the labor force than it would be to organize only the minority of scholarship football players competing on behalf of private institutions.

The second issue identified by the Board is that in all previous cases involving professional sports, petitions have been filed on behalf of all players within a league.  This is not a foreign concept for fans of the NFL, NBA, NHL, and MLB, each of which has a players’ association that represents all of the players within each respective league.  The Board hesitated to approve a unit solely for the scholarship players at Northwestern, which is just one of the twelve teams in the Big Ten Conference and the 125 teams in NCAA FBS football.  Once again, while this part of the decision can be read as putting up another roadblock to future unionization efforts, it also can be read as an opportunity.  The unstated suggestion here is that if scholarship players from every team in a conference, such as the Ivy League, petitioned to form a conference-wide bargaining unit, it very well may have a greater chance of success.

Lastly, it is worth noting that the Board clearly was influenced by recent changes made by the NCAA to address many of the reasons why CAPA argued that a players’ union was needed in the first place, as discussed here.  Since the Regional Director issued his decision last March, the NCAA has changed rules allowing for FBS teams to award guaranteed 4-year scholarships as well as food vouchers to scholarship athletes, just to name a two.  The Board noted that these changes in the terms and conditions under which the Northwestern players operate, and any similar changes like this that may be made in the future, could change its approach to future cases on this same issue.  This acknowledgement is an undeniable indication that even though CAPA was not successful in its immediate goal of unionizing the Northwestern players, the pressure it put on the NCAA through this process is working and that it is accomplishing the larger goal of improving the working conditions of NCAA grant-in-aid scholarship athletes.

Thus, the Board’s decision this week was not what those in the labor movement had hoped for.  However, it also clearly is not the absolute victory that Northwestern, the NCAA, and other foes of organized labor are claiming it to be.  This issue is not going away and this will not be the last time the NLRB or a state labor board, if not both, has to rule on this topic.  Stay tuned.

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