Last week, in a unanimous decision, the National Labor Relations Board (NLRB) declined to assert jurisdiction in the Northwestern University college football player unionization case.
Back in March, a Regional Director of the NLRB found that grant-in-aid scholarship players, represented by the Northwestern University and College Athletic Players Association, were “employees” subject to Section 2(3) the National Labor Relations Act (NLRA).
This was big news at the time, because it potentially opened the door for all sorts of difficulties. Could college players go on strike right before a big game, demanding easier classes or some other “benefit”?
Could a union exclusively represent the players, demand that all players become members, and withhold a portion of their scholarship money as “union dues?” And how would all of this affect the complicated contracts between colleges and athletic conferences, such as the NCAA, the Big Ten, or the ACC?
All of this was put to rest when the NLRB declined to assert jurisdiction.
Rather than saying whether or not college football players at Northwestern were “employees” under the NLRA, the NLRB decided to exercise its discretion to decline jurisdiction because an actual decision would “not promote stability in labor relations.”
On the one hand, the NLRB is correct that deciding that Northwestern’s football players are employees would open a can of worms.
Northwestern is one of only 17 private colleges that participate in NCAA Division I football. The remaining 111 schools are all public schools that are not subject to the NLRA. In other words, any decision would have affected only a small portion of schools at the expense of upending a billion-dollar industry.
And yet, in declining jurisdiction, the NLRB is allowing an inconsistency in the law to remain in place. Student athletes are very similar to “employees” in a number of ways. Their schools rake in millions of dollars per year hosting sporting events, and the students themselves have many rules that they have to follow. They need to be at practice certain hours, they need to meet performance standards, and they are even subject to codes of conduct that go far beyond rules governing other students.
And yet, aside from their scholarships, they aren’t paid, and are, in fact, prohibited by the NCAA from being paid.
Whether one believes the NLRA represents good policy or not, it is a federal law that should be applied even-handedly.
If the NLRB is, in fact, creating a special carve out for college football players for political expediency, Monday’s non-decision would be an example of reaching the correct policy result (the players cannot unionize) for the wrong reason.
Special carveouts are no substitute for wholesale reform of federal labor laws.
Finally, in a footnote, the NLRB says “we are not suggesting that the NCAA’s control … is an independent reason to decline to assert jurisdiction. We merely observe that bargaining in a single-term unit will not promote labor stability in this case.”
As it happens, however, the NLRB ruling Monday is explicitly limited— Northwestern University’s football players cannot unionize, because the NLRB does not wish to address a controversial issue.
It would be better for Congress to reach the same result through sensible reform of the NLRA.
