The National Labor Relations Board on Monday dismissed a petition filed by Northwestern football players who were seeking to unionize. In what is widely viewed as a surprising decision by the union-friendly Obama Board, in Northwestern University, the three Democrats and two Republicans on the Board unanimously declined to assert jurisdiction over Northwestern scholarship football players. Instead, the Board determined that even if the student-athletes were statutory employees, it would not effectuate the policies of the National Labor Relations Act to assert jurisdiction.
In 2014, Northwestern University scholarship football players filed a petition with the Board’s Chicago Regional office seeking representation by the College Athletes Players Association, a United Steelworkers-supported group that sought to represent the players. The Regional Director found that the scholarship players were employees within the meaning of Section 2(3) of the Act. In so finding, the Regional Director determined that the players were not primarily students because they devoted over 50 hours per week to football, a separate activity from the academic degree program. Likewise, the Regional Director reasoned that the scholarship athletes were subject to the University’s control – – the athletes were required to attend workouts, and were restricted from certain personal activities solely because they were members of the football team.
Northwestern University appealed the Regional Director’s decision to the Board, arguing that the scholarship players were not employees under the Act. To the surprise of many scholars and practitioners, the left-leaning Board, citing competitive balance and the potential impact on NCAA rules, determined that it would not effectuate the policies of the Act to assert jurisdiction. Put differently, the Board specifically declined to determine whether the scholarship players were statutory employees. In so holding, the Board reasoned that the case involves “novel and unique circumstances,” because there has never been a petition for representation before the Board in a unit of a single college team, or a group of college teams.
The Board announced that “it would be difficult to imagine any degree of stability in labor relations if we were to assert jurisdiction in this single-team case.” Specifically, the Board explained that bargaining has never involved a bargaining unit consisting of a single team’s players, where the players for competing teams were unrepresented or entirely outside of the Board’s jurisdiction. All previous Board cases concerning sports involved professional leaguewide bargaining units. Here, the Board explained, roughly 125 colleges and universities participate in the Division I Football Bowl Subdivision, with all but 17 of the universities outside of the Board’s jurisdiction because they are state-run institutions, and are therefore not considered “employers” within the meaning of the Act.
Notably, the Board distinguished the instant case from cases involving graduate student assistants, student janitors and cafeteria workers whose employee status the Board has considered, and rejected, in prior cases. The Board noted that, unlike graduate assistants, the scholarship players are undergraduates, and the football activities they engage in are unrelated to their course of study or education programs. Moreover, the Board noted, the fact that the scholarship players are students who are also athletes receiving a scholarship to participate in what has traditionally been regarded as an extracurricular activity sets them apart from the Board’s previous decisions involving students. However, in observing that the Board has never confronted a case involving students who are similarly situated to the scholarship players at issue in this case, the Board clarified that it has no opinion as to whether the cases discussing graduate student assistants or student janitors and cafeteria workers were correctly decided.
The Board’s decision is a blow to the union movement in college sports, which was led by the former Northwestern quarterback Kain Colter. The decision leaves no recourse for Northwestern players to appeal. And while the Board emphasized that its decision not to assert jurisdiction does not preclude reconsideration of this issue in the future, it is unlikely that the Board will revisit this issue anytime soon. By punting the issue of jurisdiction, the Board avoided a backlash from not only the pro-employer community, but nearly every private college and university in the country.
While unionization is unlikely in college sports in the foreseeable future, the NCAA has taken notice. The NCAA recently changed its governance structure to allow its wealthiest conferences to make some of their own rules, including allowing full-cost-of-attendance stipends, offering four-year scholarships, and providing more comprehensive health care to its student-athletes.