NLRB Rules That Northwestern Football Players Can't Unionize

Illustration for article titled NLRB Rules That Northwestern Football Players Can't Unionize

The Northwestern football team’s attempt to unionize has reached its end. Today, the National Labor Relations Board overruled a previous decision by NLRB’s Chicago district that gave the players the right to unionize. The national office’s ruling on the issue is final, and the Northwestern football players are left with no recourse to appeal.


The NLRB’s decision rests on its belief that allowing the Northwestern football team to unionize would “not support stability in labor relations” in college football. Here’s the money quote:

After careful consideration of the record and arguments of the parties and amici, we have determined that,even if the scholarship players were statutory employees (which, again, is an issue we do not decide), it would not effectuate the policies of the Act to assert jurisdiction. Our decision is primarily premised on a finding that, because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction in this case.

Note that the board’s decision skirts around the issue of whether or not college football players are university employees, which makes this decision more of a punt than an outright denial. The board’s decision was more about the logistical problems that would come from allowing one private school to unionize and collectively bargain while all the rest were left outside the NLRB’s jurisdiction. From the decision:

Just as the nature of league sports and the NCAA’s oversight renders individual team bargaining problematic,the way that FBS football itself is structured and the nature of the colleges and universities involved strongly suggest that asserting jurisdiction in this case would not promote stability in labor relations. Despite the similarities between FBS football and professional sports leagues, FBS is also a markedly different type of enterprise.In particular, of the roughly 125 colleges and universities that participate in FBS football, all but 17 are state-run institutions. As a result, the Board cannot assert jurisdiction over the vast majority of FBS teams because they are not operated by “employers” within the meaning of Section 2(2) of the Act. See, e.g., Big EastConference, 282 NLRB at 340. More starkly, Northwestern is the only private school that is a member of theBig Ten, and thus the Board cannot assert jurisdiction over any of Northwestern’s primary competitors. This too is a situation without precedent because 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.

In such a situation, asserting jurisdiction in this case would not promote stability in labor relations. Because most FBS teams are created by state institutions, they may be subject to state labor laws governing public employees. Some states, of course, permit collective bargaining by public employees, but others limit or prohibit such bargaining. At least two states—which, between them, operate three universities that are members of theBig Ten—specify by statute that scholarship athletes at state schools are not employees. Under these circumstances, there is an inherent asymmetry of the labor relations regulatory regimes applicable to individual teams.In other contexts, the Board’s assertion of jurisdiction helps promote uniformity and stability, 20 but in this case, asserting jurisdiction would not have that effect because the Board cannot regulate most FBS teams. Accordingly, asserting jurisdiction would not promote stability in labor relations.

This explanation, and the fact that the NLRB cast aside the question of employment, seems to leave the door open for future attempts at unionization, provided that it is conducted on a much a larger scale—the entire Big 12 rather than just one private school, for example. Given the amount of union-busting that went on when just one school was threatening to unionize, though, it’s hard to imagine such an endeavor getting off the ground.

You can read the NLRB’s entire decision below: