College football has a way of bringing strange bedfellows together. Last week, all five members of the National Labor Relations Board (the “NLRB”)—who seem to rarely agree on anything—joined in a decision that ended the effort by Northwestern University scholarship football players to unionize. In doing so, the NLRB overruled a decision by the Chicago-Area Regional Director, who had ordered a union representational election and impounded the ballots from the election pending the NLRB's decision. The NLRB's decision is final and nonappealable. There is no instant replay or other review. The ballots cast in the election will never be counted. The final score in this particular contest is Northwestern University-1, the Union-0.
Many NLRB observers were surprised by this result, especially by its unanimity. The current board has recently issued so many pro-union decisions (mostly 3-2 split decisions) that a ruling in favor of the Union seemed likely, if not inevitable. Even more surprising was the way in which the board reached its unanimous conclusion. The arguments advanced by Northwestern and the Players' Union largely focused on the question whether Northwestern scholarship football players were "employees" within the meaning of the National Labor Relations Act, but the board did an end run around that issue, holding that even assuming the players were employees—which the board declined to decide—there were compelling public policy reasons for the board to decline jurisdiction and therefore not process the election petition. The principal reasons identified by the board for declining jurisdiction were as follows:
- Colleges and universities playing intercollegiate athletics work together to enact and enforce common rules for recruiting, practicing, and competition by means of organizations such as the NCAA and Conferences. That being the case, labor issues directly involving only the Northwestern football team and its scholarship players would also affect the NCAA, the Big Ten Conference, and other schools. Any decision by the board would inevitably have ramifications for other teams and "would not serve to promote stability in labor relations."
- The vast majority (108) of the 125 colleges and universities playing in the NCAA Division 1 Football Bowl Subdivision (“FBS”) are state-run schools, which are beyond the jurisdiction of the NLRB. In fact, among the Big Ten Conference’s 14 schools, Northwestern is the only private institution and thus the only member of the Big Ten within the board's jurisdiction.
As a result of these "novel and unique circumstances," the board stated that "it would not effectuate the policies of the Act to assert jurisdiction" in the Northwestern case itself. The board bent over backward, however, to emphasize repeatedly that its decision is limited to the Northwestern case and its peculiar circumstances. Besides leaving to another day the issue whether scholarship football players are "employees" within its jurisdiction, the board also left open the possibility that it would make a different decision under different circumstances—for example, if a union were to petition to represent all scholarship football players in all FBS private colleges and universities.
The takeaway: For now, Northwestern and other NCAA members can breathe a sigh of relief, but the issue whether scholarship college football players are "employees" with the right to unionize remains an open question that could be revisited by the NLRB in the future under different circumstances.
