Hunton Employment & Labor Perspectives

On August 17, the NLRB declined to assert jurisdiction over Northwestern University’s scholarship football players, holding that doing so “would not serve to promote stability in labor relations.” The Board dismissed the election petition filed by the Steelworkers-backed “College Athletes Players Association” (CAPA) and directed that the ballots (which were uncounted and had been impounded) be destroyed. Although the outcome obviously pleased Northwestern (and the Big Ten, other bowl subdivision conferences and the NCAA), the Board’s opinion leaves key questions unanswered. Among these are whether college scholarship football players should be deemed employees; why the NLRB took the case in the first place given its view that it would be nearly impossible to effectively regulate labor relations in the Big Ten; and why CAPA targeted Northwestern. A summary of key rulings and some observations follow below.

Board’s Quick Kick on Employee Status. Despite noting that CAPA, Northwestern, and numerous “friend of the court” briefs all had focused on the critical question of whether Northwestern’s scholarship football players were actually employees and not student-athletes, and admitting that without employee status “the Board lacks authority to direct an election or certify a [labor union],” the Board sidestepped the issue altogether. Instead, it decided to exercise its discretionary power to decline jurisdiction over particular employers or industries. The doctrine is well established and has been in use for decades. But it applies only where the Board could take jurisdiction, but voluntarily does not. The problem in this case is that the Board has no jurisdiction whatsoever (discretionary or otherwise) over the players unless it found them to be employees under the NLRA. Many observers felt that a finding of employee status had always been a “hail Mary” for CAPA and the Steelworkers, so the Board’s refusal to admit as much is disappointing.

Big Ten Impossible to Regulate? State-run schools are not subject to the NLRA, so the Board largely accepted Northwestern’s argument that unionization could create chaos in college sports due to the patchwork of federal, state and even local laws that apply. The Board noted that, among the fourteen Big Ten teams, Northwestern was the only private school and thus the only program potentially subject to NLRB regulation. Some Big Ten states do not permit collective bargaining at all, and in Michigan and Ohio, state legislators recently passed laws providing that scholarship athletes at state schools are not employees. As the Board acknowledged, in nearly all other cases involving sports leagues the bargaining unit consisted of the entire league, not just a single team. These factors created what the Board characterized as “an inherent asymmetry of the labor relations regulatory regimes applicable to individual teams.” The Board also acknowledged that both the NCAA and the Big Ten exercise substantial oversight and control over games, practices, recruiting and other terms, thus further complicating collective bargaining

Why Target Northwestern? The most likely answers are that Northwestern is the only Big Ten program potentially subject to the NLRA and CAPA co-founder Kain Colter was Northwestern’s quarterback in 2012 and 2013. Even so, in view of the substantial financial support and strategic coaching CAPA got from the Steelworkers, it’s hard to understand why the union didn’t start somewhere else. Northwestern’s athletic admissions standards are among the toughest in the nation. Each year since 2012 it has earned the nation’s highest graduation success rate for bowl subdivision schools and it has been at or near the top for many years. Players rarely get in trouble with the law. Head coach Pat Fitzgerald (the all-American linebacker on the 1995-96 teams), is widely admired as a player advocate who runs a squeaky-clean program and insists on putting academics first. Northwestern was among the first to guarantee four-year football scholarships against injury or loss of position on the depth chart. And while the program has achieved respectability since the mid-1990s (when sportswriters stopped calling them the “Mildcats”), nobody would mistake Northwestern for a football factory.

Extra Points

1. Since the Board didn’t decide whether scholarship athletes are employees, CAPA and other unions may seek other opportunities to organize college teams (and maybe even some high schools).

2. However, the Board’s reasons for not injecting itself into bowl subdivision football make sense. They should apply not only to Northwestern and the Big Ten, but also to the rest of the FBS conferences and teams. And to other NCAA-governed intercollegiate sports as well. That being so, labor unions that try to organize scholarship football players are likely to be thrown for a loss.

3. CAPA told the Board it wouldn’t seek to bargain over compensation. Maybe that’s because Northwestern football scholarships are already worth $61,000 or more per year and 97% of the players earn a degree. Or maybe it’s because the union hasn’t yet figured out a plausible strategy for changing the scholarship paradigm into a wage package. In either case, it’s another reason to doubt whether unions have a legitimate role to play in college athletics.

4. As part of its rationale for declining to assert jurisdiction, the Board noted that the NCAA and some Division I conferences have already made favorable changes and others are under active consideration. True enough, but what’s that got to do with NLRB jurisdiction or whether scholarship athletes are employees? Despite Chairman Pearce’s 2012 statement that “we want the [NLRB] to be known as a resource for people with workplace concerns that may have nothing to do with union activities,” the Board is not a general social change agency and it does not have general jurisdiction over the workplace.

5. The Board’s refusal to make the call on employee status might have been due to its concerns about being sacked by a skeptical federal appeals court. But it might also reflect a tacit (and welcome) acknowledgment that fundamental changes in national labor policy – like changing college athletics from being part of the educational experience into jobs -- should be left to Congress.