NLRB Punts on College Athletes’ Unionization Efforts
Kegler Brown E-mployment Alert August 20, 2015
The National Labor Relations Board (“NLRB”) declined jurisdiction to hear the petition of Northwestern University scholarship football players to unionize. The result is the petition is dismissed. The decision, issued by the five-member Board, punts on the questions of whether college athletes are employees of their university, and whether they have the right to unionize. This comes as a reversal of sorts from a March 2014 ruling by the NLRB regional director, who found that the athletes were employees and did have the right to unionize.
The Board’s stated basis for declining jurisdiction was that ruling on this particular case would “not promote labor stability.” The Board said that due to “the nature and structure of NCAA Division I Football Bowl Subdivision,” and absent any clear direction from Congress, this was not the right case for the Board to weigh in. The decision explicitly states that it is “narrowly focused” and “does not preclude reconsideration of this issue in the future.”
What This Decision Means
Taking the NLRB at its word, this decision means very little.
The Board made extra effort to say that it was not foreclosing this issue. Nor was it calling for a moratorium on unionization efforts at other schools. The Board’s explanation was that it does not have jurisdiction over state-run colleges and universities, which comprise the overwhelming majority of schools in the Football Bowl Subdivision. The Board opined that because of this lack of authority over those schools, any ruling at this time would disrupt labor stability by creating an uneven playing field for recruiting efforts.
This explanation of union rights creating competitive disadvantages has come before the Board from other trades and industries in the past. But unlike those other times in the past, the competitive disadvantage argument carried the day.
That said, observers should make no mistake: The Board’s ruling does not give any indication that its pro-labor stance is weakening. There was tremendous political pressure on both sides of this issue. By declining jurisdiction, the Board has deferred the issue for a future date
The practical effect is that, for now, Northwestern Football players are student-athletes – not employees.