NLRB Denies Union Standing for Northwestern Football Players

Some would call it punting.  Others would call it common sense.  Both summations might apply.  On Monday, August 17, the National Labor Relations Board unanimously ruled that scholarship football players at Northwestern University cannot form a union.  In overturning a March 2014 regional NLRB decision, the board concluded that allowing union organizing at one campus, but not at others, would be disruptive.  The ruling read:  “Our decision is primarily premised on a finding that because of the nature of sports leagues…it would not promote stability in labor relations to assert jurisdiction in this case.”  While the decision is a rebuke to the players’ request, its scope is narrow.  By declining to rule on whether student-athletes qualify as “employees,” the board has kept the door open for similar cases.    

Union Corruption Update twice analyzed this case in detail last April (here and here).  A nationwide student-athlete labor activist organization, the College Athletes Players Association (CAPA), had filed a petition for collective bargaining representation in January 2014 with the National Labor Relations Board’s Chicago regional office.  The head of the group, Ramogi Huma, a former linebacker at UCLA, had been approached by Kain Colter, who recently had been a quarterback for Northwestern University, a Big 10 school, and who now was spokesman for his teammates who had signed union pledge cards.  Colter insisted that the overwhelming majority of players had signed, thus well exceeding the minimum 30 percent threshold needed to trigger an NLRB-supervised election.  The pro-union players also had assistance in the form of the United Steelworkers.  Ramogi already had approached Steelworkers President Leo Gerard and made a believer out of him.  These persons and their allies announced at a press conference in Chicago on January 28 that they had filed a representation petition with the NLRB.  The Board of the Player Representatives of the NFL Players Association did its part, passing a resolution pledging full support.

CAPA, the Steelworkers and the Northwestern football players in short order also would make a believer out of NLRB Chicago Regional Director Peter Sung Ohr.  That March 26, Ohr ruled that the players had legal standing as a collective bargaining unit.  The plaintiffs, he wrote, “fall squarely within the [National Labor Relations] Act’s broad definition of ‘employee’ when one considers the common law definition of ‘employee.’”  Dedication to a full work week ought to mean eligibility to unionize.  While the ruling applied only to men's football and basketball players on athletic scholarship at NCAA Division 1 private institutions, this was an enormous victory for the petitioners, and more broadly, for unions as a whole.             

Northwestern University, long one of the top-ranked private institutions of higher learning in the nation with a nearly 100 percent graduation rate for football players, responded by filing an appeal two weeks later on April 9.  Regional Director Ohr, the complaint read, ignored key facts, relying almost solely on the testimony of Kain Colter, while minimizing testimony by three other football players who stated that academics were their main priority.  The university’s brief charged:  “Based on the testimony of a single player, the Regional Director described Northwestern’s football program in a way that is unrecognizable from the evidence actually presented at the hearing.”  College sports officials already had weighed in.  Big 12 Conference Commissioner Bob Bowlsby criticized the idea of “creating an employer-employee relationship with student-athletes.”  And NCAA Chief Legal Officer Donald Remy noted:  “This union-backed attempt to turn student-athletes into employees undermines the purpose of college:  an education.”   

The situation was unprecedented.  Never before had the five-member NLRB reviewed a case involving college sports.  And never before had it considered whether to certify a single team even in pro sports for collective bargaining eligibility.  That said, the board responded quickly.  On April 24, 2014, the National Labor Relations Board announced it would review the appeal.  The players countered the next day by holding a secret ballot vote on whether to unionize.  All 76 football scholarship players were eligible to vote.  CAPA’s Huma stated:  “Today’s vote clearly demonstrates that amateurism is a myth and that college athletes are employees.  The NCAA cannot vacate this moment in history and its implications for the future.”  The board stated that it would not count the ballots until after a ruling favorable to CAPA.  And it would not count them at all if the vote was unfavorable.

The NLRB now can save itself the task of counting ballots.  This Monday, August 17, the board unanimously decided to dismiss the representation petition.  As Democrats outnumber Republicans on the board by 3-2, the ruling was something of a surprise.  At the same time, its scope is very limited.  The NLRB wrote: 

In the decision, the Board held that asserting jurisdiction would not promote labor stability due to the nature and structure of NCAA Division 1 Football Bowl Subdivision (FBS).  By statute the Board does not have jurisdiction over state-run colleges and universities, which constitute 108 of the roughly 125 FBS teams.  In addition, every school in the Big Ten, except Northwestern, is a state-run institution.  As the NCAA and conference maintain substantial control over individual teams, the Board held that asserting jurisdiction over a single team would not promote stability in labor relations across the league.

The NLRB added, crucially:  “This decision is narrowly focused to apply only to players in this case and does not preclude reconsideration of this issue in the future.”  A ruling in favor of union standing would have affected all 17 football teams at private institutions in the NCAA Division 1:  Baylor, Boston College, Brigham Young, Duke, Miami (Fla.), Northwestern, Notre Dame, Rice, Southern California, Southern Methodist, Stanford, Syracuse, Texas Christian, Tulane, Tulsa, Vanderbilt and Wake Forest.  For now, at least, the issue is moot.

Kain Colter, though somewhat disappointed, emphasized this is only round one.  “It’s definitely not a loss,” he told ESPN.  “Since we started this movement, a lot of positive changes have come from this – the introduction of four-year scholarships, increased stipends, maybe better medical coverage, the lifting of food restrictions.  A lot of the things that we’ve been fighting for have been adopted.  But there is a lot of room to go.”  By contrast, Northwestern officials support the ruling.  “We applaud our players for bringing national attention to these important issues,” said Alan Cubbage, campus vice president for university relations, “but we believe strongly that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes.  We are pleased that the NLRB has agreed with the University’s position.”  The NCAA, though not a defendant in the complaint, similarly remarked:

The National Labor Relations Board’s decision to reject jurisdiction and dismiss the union petition in this case is appropriate.  In its ruling, the NLRB recognized the NCAA continually evolves to better support college athletes.  In recent years we have provided college athletes with multi-year scholarships, free education for former college athletes and unlimited meals.  Further, college athletes helped Division I change rules in January to provide guaranteed, full cost of attendance scholarships and improve student well-being.  The NCAA and its member schools are committed to providing the best support possible for all college athletes and will continue to do so in the future.

The NCAA/Northwestern position is the sounder one.  Back in April 2014, when this issue first hit, National Legal and Policy Center offered several reasons why union recognition for college sports, whether at private or public institutions is a bad idea.  Nobody needs reminding that college sports is a big business, especially at the Division 1 level for football and basketball.  Football bowl season and basketball “March Madness” have become national obsessions even for people who have never been to college.  And there is serious money here.  During fiscal year 2014 (year ending June 30), NCAA Division 1 football programs turned a $1.4 billion profit on $3.4 billion in revenues, according to the U.S. Department of Education.  It’s understandable why players, especially those locked into a full athletic scholarship, would want a piece of the action.  

Transforming campus jocks into hardball negotiators, ever wielding the possible threat of a slowdown or a strike, however, is the wrong way to go.  It further would professionalize what is still an amateur pursuit and undermine the main reason for going to college which is to get an education.  Yes, hypocrisy does exist.  College athletic programs, on many occasions and in varying ways, have touted the platitudes of amateurism while operating what amount to semi-pro franchises.  But making official the implicit professional status in football and basketball programs would undermine the mission of higher education.  It would further force campus athletic departments into the role of money maker – and eventually at public as well as private universities; create bidding wars to attract or retain top prospects; induce players to devote even less time to their studies so as to justify their salaries; make explicit the implicit campus social caste system; raise tuition and fees for non-athletes; invite cancellation of “minor” sports to make way for more funding for football and basketball; and (given the high proportion of blacks in those two major sports) create needless racial tension. 

College athletes who wish to receive a salary and benefit package for their efforts have the option of turning pro.  The current arrangements governing amateur sports programs have their weaknesses, but those weaknesses remain far more manageable, and negotiable, than allowing campuses to be held hostage to union demands.  Unions wishing to boost their ranks and bargaining power should focus their organizing away from campus locker rooms.

Related:

NLRB Agrees to Hear Northwestern Appeal; Football Players Vote on Forming Union

NLRB Forces Unionism on NCAA Sports