The National Labor Relations Board on Monday dismissed a petition by Northwestern football players who were seeking to unionize, effectively denying their claim that they are university employees and should be allowed to collectively bargain. In a unanimous decision that was a clear victory for the college sports establishment, the five-member board declined to exert its jurisdiction in the case and preserved, for now, one of the N.C.A.A.’s core principles: that college athletes are primarily students.
The board did not rule directly on the central question in the case — whether the players, who spend long hours on football and help generate millions of dollars for Northwestern, are university employees. Instead, it found that the novelty of the petition and its potentially wide-ranging impacts on college sports would not have promoted “stability in labor relations.” Citing competitive balance and the potential impact on N.C.A.A. rules, the board made it clear that it harbored many reservations about the ramifications of granting college athletes, much less a single team, collective bargaining rights.
“The board has never before been asked to assert jurisdiction in a case involving college football players, or college athletes of any kind,” the seven-page decision read, adding, “Even if scholarship players were regarded as analogous to players for professional sports teams who are considered employees for purposes of collective bargaining, such bargaining has never involved a bargaining unit consisting of a single team’s players.”
Northwestern University, which strongly urged its players to vote down the union ahead of last year’s secret ballot election, released a statement from Alan Cubbage, a spokesman. “We believe strongly that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes,” it read. “We are pleased that the N.L.R.B. has agreed with the university’s position.”
Across college sports, many others praised the ruling. The commissioners of 31 of the largest conferences issued a statement calling the N.L.R.B. decision “the right call,” and Donald Remy, the N.C.A.A.’s chief legal officer, said it would allow the association “to continue to make progress for the college athlete without risking the instability to college sports that the N.L.R.B. recognized might occur under the labor petition.”
The decision is a blow to the union movement in college sports, which was led by the former Northwestern quarterback Kain Colter and backed by the College Athletes Players Association, a United Steelworkers-supported group that sought to represent the players. The group could sue to force the N.L.R.B. to exert jurisdiction in the case, but the little-used option would be akin to a Hail Mary pass.
Ramogi Huma, president of the College Athletes Players Association, said he was disappointed by the decision but would not rule out future unionization attempts at other colleges.
“It’s notable they didn’t rule that players aren’t employees,” he said. “The door is still open.”
The board wrote that its decision applied only to the Northwestern case — there was no precedent established for graduate teaching assistants or student janitors — and left open the possibility it could re-examine the issue if college athletes brought a similar case in the future.
“This decision is politically smart,” said Joe Ambash, a lawyer who represented Brown University in front of the N.L.R.B. when its graduate teaching students sought to unionize. “The board would have faced a firestorm of protest if they made college football players employees.”
In announcing the union push last year, Colter had hoped to reset the balance of power between players, their universities and the N.C.A.A. He argued that with all the time demands on players and the ever-increasing money flowing through college sports, players deserved a greater say in issues like safety and long-term health care.
Peter Ohr, a regional director of the N.L.R.B. in Chicago, ruled last year that players on scholarship were employees based on the hours they spent each week on football, the strict rules set by coaches and the financial aid they received as compensation. Northwestern players — 76 were eligible — voted whether to certify the union last April, but the votes were impounded pending a ruling by the full N.L.R.B. Now that the board has ruled in favor of Northwestern, the ballots will not be counted.
“There may have been some sympathy for the players’ argument,” said Wilma Liebman, a former chairwoman of the N.L.R.B. “But siding with the players may have seemed like too great a leap, so this is a compromise.”
Chief among the board’s reasons for declining to consider the case were the complexities of an N.C.A.A. in which one team might be unionized while others were not, and whether a union would negotiate terms that conflicted with the association’s rules. The N.L.R.B., which has jurisdiction only over the private sector, was also reluctant to wade into territory that could have raised implications for public universities. A vast majority of top-level college football programs are at public colleges, and Northwestern is the only private institution in the 14-member Big Ten Conference.
In the aftermath of Ohr’s ruling, two states — Michigan and Ohio — pushed laws that banned college athletes from unionizing.
Still, much has changed in college sports since Colter and Huma announced the union petition. The N.C.A.A. changed its governance structure to allow its wealthiest conferences to make some of their own rules, and those leagues, in turn, increased the value of a scholarship by a few thousand dollars and now guarantee them for four years. A number of conferences and individual colleges have pledged to offer more comprehensive health care. And last summer a federal judge found that the N.C.A.A. had violated antitrust laws by not allowing players to profit from their names (the ruling was stayed last month by an appellate court).
“The Northwestern players’ courage has done a lot to change the game,” Huma said. “They showed how much power the players have when they assert their rights under the law.”
August 17, 2015