Administration

NLRB’s Northwestern Ruling Sets a High Bar for Approving Student-Athlete Unions

AP Photo/Jeffrey Phelps

Northwestern U. football players, shown at a practice on Monday, had fought to form a union. The National Labor Relations Board dismissed their petition on Monday but skirted ruling on the larger issue of whether athletes at the private institutions could be considered employees.
August 18, 2015

The National Labor Relations Board decided on Monday to reject a bid by football players at Northwestern University to form a union.

More than a year after the five-member board took up the issue, it released a unanimous decision saying that the board was "declining to assert jurisdiction" in the case because allowing athletes at a private university to organize would not "promote stability in labor markets."

The board did not rule on the core issue of whether athletes who receive grant-in-aid scholarships are employees, seeming to leave open the possibility that other groups of student athletes could attempt to organize a union. However, experts in labor law and college athletics say the board was simply dodging a difficult issue and possibly even making it harder for similar groups to unionize in the future.

Warren K. Zola, an expert in sports law and an adjunct professor at the Carroll School of Management at Boston College, said the board had "shirked its duty" by avoiding the bigger question.

"Those of us in the industry expected a decision" on whether college athletes could be considered employees "rather than what we got," he said.

Unless an antitrust lawsuit removes or drastically reduces the National Collegiate Athletic Association’s central authority, similar efforts are likely to fail, said William B. Gould IV, a former chairman of the labor-relations board and an emeritus professor of law at Stanford University.

"I think this will inhibit, if not kill, the possibility of collective bargaining in the big athletic conferences," he said.

A Shock Wave Undone

Last spring, a regional office of the board in Chicago ruled that football players at Northwestern, a private university in the Big Ten Conference, qualified as employees and had the right to organize a union.

That ruling sent a shock wave through college athletics, opening up the possibility that similar private institutions could be forced to bargain collectively with athletes over such issues as monetary compensation, workplace conditions, and health care and other benefits, including academic support.

Not surprisingly, Northwestern appealed the decision to the full national board, which announced in April 2014 that it would review the ruling.

Monday’s unanimous ruling by the full board came as a surprise not only for its result, but also for the length of time it took the board to reach it.

"I was incredibly surprised for the NLRB to punt on this issue, especially after it took 17 months to consider," Mr. Zola said. "They could have made this call over drinks the afternoon after the Chicago decision," he said.

The central tenet of the board’s decision to reject the Northwestern players is that they attend a private university — the only one in the Big Ten and one of just 17 private colleges among the 128 institutions that make up the Football Bowl Subdivision, the NCAA’s highest level.

The NLRB’s reach is limited because it does not have jurisdiction over public colleges, where collective-bargaining rights are governed by state laws. So giving collective-bargaining rights to student athletes at just one or even several private colleges would be disruptive to the entire system, the board reasoned.

"In all of our past cases involving professional sports, the board was able to regulate all, or at least most, of the teams in the relevant league or association," the decision states.

And because only a few teams would ever qualify for collective bargaining, the board said it should defer to the rules of the NCAA, which prohibits players from being directly compensated.

The board also pointed to the many developments in college athletics that are meant to quell the concerns of student athletes, such as guaranteeing their scholarships for all four years of their eligibility.

In a written statement, Donald Remy, the NCAA’s chief legal officer, called the labor board’s action "appropriate," citing the changes the NCAA had made to improve athletes’ well-being. He said the decision would allow the association to "continue to make progress for the college athlete without risking the instability to college sports" that the board said could occur under the players’ union bid.

Praise and Dismay

In a prepared statement, Northwestern officials praised the decision, repeating previous positions that participants in college athletics are students first, and that playing a sport is part of the overall college experience.

The American Council on Education also supported the board’s decision, saying in a prepared statement that classifying students as employees would represent "an unprecedented intrusion into the missions of universities that would impinge on academic freedom and only serve to exacerbate many of the problems critics find with intercollegiate sports."

But advocates for reform of college athletics were unpersuaded by the board’s arguments.

The leaders of the College Athletes Players Association, which championed the unionization drive at Northwestern, lamented the board’s action as delaying similar athlete-union drives at private colleges, but emphasized that the board did not close the door completely on such efforts in the future.

Richard M. Southall, director of the College Sport Research Institute at the University of South Carolina, said that there’s some irony in using the reforms as a way to justify the board’s decision. Colleges are increasingly spending lots more money on athletes while complaining that there is too little money to pay them as employees, he said.

Ellen Staurowsky, professor of sport management at Drexel University, said the board’s reasoning ignored the fact that those sorts of changes had come about because of the many legal challenges the NCAA has faced.

This ruling is meant to protect the status quo, Ms. Staurowsky said, "but the whole system needs to be destabilized and disrupted."

"This ruling puts athletes back into that challenging cycle of seeking remedies through the legal system," she said. "The more desirable path is for athletes to be given the leverage to advocate on their own behalf."

Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.