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NLRB Shoots Down the Northwestern Players' Union: Now What?

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Northwestern players can't form a union, but not for the reason you think. So what does it all mean?

The attempt to unionize Northwestern's football team, led by former quarterback Kain Colter, is at an end.
The attempt to unionize Northwestern's football team, led by former quarterback Kain Colter, is at an end.
Matt Marton-USA TODAY Sports

On Monday, the National Labor Relations Board, or NLRB, put an end (note: link goes to PDF) to the drive to unionize Northwestern Wildcats football under the auspices of the College Athletes Players Association, or CAPA, a group backed by the United Steel Workers. And the saga really has come to an end: the nature of the NLRB's decision makes it unappealable, a topic I'll discuss in more detail below. Like my post from last year on the original decision allowing Northwestern players to vote on a union, my goals here are to explain what happened and examine how it might affect the MAC (and maybe college sports more generally). If you've got any questions, feel free to ask away in the comments. (Of course, none of this post is legal advice, because you have to buy me a beer to get that.)

How did we get here?

Just to bring you up to speed, in case you aren't familiar: last year, a group of Northwestern players, led by then-quarterback Kain Colter, worked with CAPA to petition the NLRB for permission to hold a player election to unionize the Northwestern football team. Before a union can be certified under federal law, the employees who want to unionize have to get the NLRB's sign-off on holding an election to form the union. In most cases, this is pretty straightforward: the employees petition the NLRB, the NLRB makes sure the petition checks all the boxes, and an election is held under NLRB supervision.

But this case wasn't that simple, because it wasn't clear that FBS football players were actually employees. And if you aren't employees, you can't form a union. (The proposed union membership consisted solely of scholarship football players with remaining eligibility--no walk-ons or athletes from other sports.) After a hearing, the NLRB's Chicago office concluded that scholarship football players at Northwestern were indeed "employees" of the university, and they were eligible to unionize as a result.

The players held an election, but pending an expected appeal of the Chicago office's decision to the five-member NLRB board in Washington, the ballots were kept sealed. (Unverified reports say the players voted not to unionize, but because the union effort failed on appeal, the ballots will never be opened.) Both CAPA and Northwestern filed additional papers with the NLRB, focusing almost entirely on what everyone expected to be the central issue in the appeal: whether the Northwestern players were employees.

What did the NLRB decide?

The headlines we all saw on Monday said that CAPA lost, Northwestern won, and the unionization drive is over. That's true, but not fully accurate. The NLRB expressly refused to decide whether FBS football players are employees of the private universities they play for. (As I'll discuss below, the NLRB doesn't have the power to regulate state universities.) Instead, it decided a prior question: whether it should exercise jurisdiction over college football. The NLRB concluded that getting involved in college football "would not effectuate the purposes of the" National Labor Relations Act, as they put it on page 1 of the decision.

Jurisdiction?

The NLRB can't get involved in labor disputes if it lacks the legal power to do so. That legal power is referred to as "jurisdiction." Jurisdiction is usually a rather straightforward matter of making sure that all the right requirements are met. Consider employees of a steel mill who want to unionize with the United Steel Workers. Is the steel mill an "employer" as federal law defines that term? Yes. Are the mill workers "employees"? Yes. Is the union the workers propose to join a "labor organization"? Yes. (There are other requirements, though this gives you an idea.) But what if the people at the steel mill are, for some unknown reason, volunteers working for free out of the goodness of their hearts? In that case, they aren't "employees," and the NLRB lacks jurisdiction.

Sometimes, however, the NLRB can decline to exercise jurisdiction; that is, refuse to get involved even if all the requirements are otherwise met. This is typically done because the labor dispute presents thorny problems well beyond the NLRB's expertise. In one recent case, the NLRB declined to exercise jurisdiction in a dispute over unionizing the employees of a tribally owned casino because, although the requirements were met, the tribe's 1830 treaty with the United States reserved the tribe the right to make all laws governing its internal affairs. In another case, the NLRB refused to get involved in an effort to unionize (under US law) Panamanian workers employed by a US company in the Canal Zone because, even though the boxes were all checked, the dispute presented serious foreign relations issues best left to international agreements.

Why decline jurisdiction here?

Everyone expected the fight to be about whether Northwestern players were employees, and that's what consumed most of the parties' briefing. But Northwestern also suggested that exercising jurisdiction here would be inconsistent with the purposes of the National Labor Relations Act, the NLRB's governing law. The NLRB agreed, and thus never reached the question of whether players were employees.

What motivated the NLRB's decision was concern for the effect of inconsistencies. There are 128 schools playing FBS football. Only 17 of them are private; the other 111 are public. And the NLRB has no power over state schools, because the NLRB has no power over state employees--each state has its own state-level equivalent of the NLRB to decide issues involving public employees. So from step one, the NLRB's decision could affect at most 17 schools. But it wouldn't even affect all 17, because only Northwestern players sought to unionize. As a result, labor issues involving only a single team had the potential to affect not only that team, but also 16 teams that aren't before the NLRB, 111 teams that can't come before the NLRB, and each of the FBS conferences, to say nothing of the NCAA itself.

For those of us in the burn-down-the-NCAA crowd, this isn't a bad thing. But for the NLRB, it is. One of the goals of the National Labor Relations Act is to promote stability of working conditions. (Really! It says so in section 1 of the Act.) Whatever the NCAA's numerous flaws, it's tough to deny that the NCAA, with the support of its member schools, has set uniform rules governing the sports it oversees, including football. And that goes a long way toward making things stable. Now consider the effect of unionizing only a single team in the environment of NCAA-wide rules and regulations: suddenly, the athletes on that one team have the ability to negotiate employment rules (like when to practice) that apply only to them, and to no other teams. This would eventually have some sort of trickle-down effect, but it would cause pretty severe instability in the short term as some schools unionize, others don't, and everyone operates under their own sets of rules that take away from the uniformity of competition NCAA rules are designed to ensure.

In this respect, Northwestern's push for unionization isn't really similar to professional players' unions, whatever one thinks of whether college players should be paid. The NFLPA, for example, negotiates on behalf of all NFL players, no matter their team, with the NFL (representing all the owners). Having one group represent the employees and another group represent the employers in negotiations goes a long way toward promoting stability--particularly in sports, where uniform rules are relied upon to ensure the integrity of individual games. So because unionizing a single team would threaten stability of the very "labor market" at issue--FBS football--the NLRB chose not to exercise jurisdiction.

What's next for the Northwestern players?

For them, it's the end of the road. If the NLRB had issued a ruling on whether or not the players were employees, there would have been an appeal from the losing side. But when the NLRB chooses not to exercise jurisdiction, that decision can't be appealed to the courts. (Well, it can, but only in circumstances that never happen in real life, like the NLRB declining jurisdiction out of personal hate for the workers at issue.)

So is this the end of unionization?

It's very likely the end of single-team efforts to unionize FBS football. But it's possible an effort to unionize all 17 private FBS schools might bear fruit. The concerns about stability vis-a-vis public schools would still be there, but when all the schools within the NLRB's jurisdiction are at issue, that's different from one school being the first domino.

It's also possible that public school players will attempt to unionize at the state level. This is forbidden in Ohio and Michigan, each of which have laws saying that scholarship athletes are not state employees. But all the public school FBS football players in, say, California could try to unionize, and the NLRB's order would have no binding effect on the California Department of Industrial Relations.

It's also worth noting that lower-division schools could find themselves in a different situation. The Ivies, for example, regularly play a football schedule that consists of only themselves and a few other low- or non-scholarship private programs, and they don't participate in the NCAA playoffs. They are, in effect, their own sealed-off football league of private schools, so it's conceivable the NLRB would be receptive to a union push there.

And what about the MAC in all this?

Because all the MAC schools are public, the NLRB decision has no legal effect on them in the first place. And, as I mentioned above, Michigan and Ohio provide by statute that players aren't employees, and thus can't join unions. There's no direct impact on the MAC here. But if some sort of unionization effort succeeds in the future, the trickle-down effects will be felt in the MAC, be they good or bad.

Anything else?

If you've got any questions, let me know in the comments! I'll try my best to answer them. I'll also probably add my own opinions on the decision in the comments, as opposed to my attempt at analysis above.