The attempt by college football players at Northwestern University to set up a labor union to bargain for health and other protection stalled at the National Labor Relations Board on Monday, as the five-member panel decided unanimously against taking up the legal claim. By not settling the issue, however, the board stressed that it was leaving open the possibility that a similar case could arise again.
A unionizing election had been held for Northwestern players in late April, but those votes have now been impounded and will not be counted. Thus, the public has no way of knowing whether a majority of the players voted for or against the College Athletes Players Association’s plea for the legal right to represent them in dealing with the university. The Association had asked the NLRB to rule that the players were employees who had a right under federal labor law to organize for bargaining with their university. That is the specific issue the board refused to accept for review.
It noted that Congress had not spoken explicitly on whether federal labor laws would apply to college athletes on a theory that they were employees, and said that failure left it the option of taking up the question. But the board said it has the discretion to decline to rule, and that is the option it took, ultimately concluding that settling the issue would no contribute to labor peace.
The board said there would be so many complications in trying to sort out workplace rules among players at both private universities and state-run universities, since players at both kinds of universities compete with each other in leagues, but those who play at state universities are not subject to federal labor laws. Those laws do not apply to state employees performing any kind of work.
Moreover, the board said, college football players at major schools are heavily regulated by the National Collegiate Athletic Association, and that could interfere with efforts by the players — even if they were treated as employees — to win workplace rights, such as long-term health protection and the opportunity to make money from commercial use of their on-the-field exploits. The NCAA bars student athletes from seeking such compensation now and many rules on the academic requirements for the athletes and for their relationships with their universities.
Although the board stressed repeatedly that it was not deciding the crucial employee status question, its opinion pointed out repeatedly how unusual it was to even be asked by college players to give them bargaining rights. Moreover, it noted that, when it upheld bargaining rights for those who play in the professional sports leagues, it dealt with a league-wide labor union, while the plea in the Northwestern case was only for a bargaining unit to be set up at that one university.
Northwestern plays football in the Big Ten Conference (which actually has fourteen teams), but it is the only private university in that Conference. If its players had bargaining rights under federal law, they would be the only ones in the Conference with those rights.
The would-be union for the Northwestern players does not have a legal right to challenge in court the board’s refusal to take on their case. Appeal rights from NLRB decisions are quite limited, and do not include orders that the board issues on questions of recognizing a union — so-called representation questions. A union recognition order by NLRB only becomes subject to appeal if it leads to an actual board ruling on an unfair labor practice complaint, if bargaining breaks down or is refused outright.
UPDATE: An earlier version of the post said that the football players would have the option of challenging the board decision in the courts. That was incorrect.
