Northwestern Football Unionization Ended on Appeal

18
Aug

A group of Northwestern football players led by former QB Kain Colter won a huge victory when the National Labor Relations Board’s Regional Director of Chicago, Peter Sung Ohr, ruled that football players were effectively employees under the National Labor Relations Act in 2014. This gave the players the power to form a union to possibly collectively bargain for improved health care, relaxed class requirements of some sort, or even pay in the most extreme possibility. There was always going to be an appeal by the university, and it came swiftly.

Now, in a seven page decision released on August 17, 2015, the Chairman, Mark Gaston Pearce, and four members of the Board – Phillip Miscimarra, Kent Hirozawa, Harry Johnson, and Lauren McFerran – ruled that the 2014 decision should be declined on grounds that the NLRB would not extend their jurisdiction to college football players and private universities right now.

Basically, they sidestepped the issue by ruling on a technicality. We’ve seen this over and over again in sports related legal issues. Ryan Braun sidestepped the question of steroids because the sample didn’t follow the required handling procedures (completely within his right, there is a reason those procedures exist). Adrian Peterson was reinstated because he didn’t receive proper notice of the possible penalty. Now, the NLRB is essentially saying, we can, but it doesn’t make sense to so we won’t.

And they’re probably right. One of the major pieces of the decision is that with NCAA football, specifically FBS, there is an extremely small number of universities that this ruling would affect. Public universities make up the vast majority of FBS college football. This ruling only matters directly to Northwestern, but it would have, and does, set a precedent for most other private universities competing in FBS. But it would have set them apart from public universities, which the NLRB does not have jurisdiction over.

There have been threats that some private universities would jump down to Division III if this succeeded and some public universities would simply stop competing with private universities in football. This is the issue that the NLRB alludes to in setting different rules for the specific and strange labor market of college football. The Board can¬†assert jurisdiction, but they don’t have to if it’s determined that doing so would adversely affect the goals of the NLRA, namely labor stability.

Many have pointed out that ruling on graduate student workers and college cafeteria workers that are students is almost the exact same as this ruling. They believe that choosing to assert jurisdiction in those cases but not this doesn’t make sense. The Board heads this off and I tend to agree with their reasoning. Despite the similarities in the situations, it is not apples to apples when looking at graduate students and student athletes. The big difference is the labor instability it would cause because of the NCAA and the competition in sports between schools. Yes, there is competition for graduate students, but not in the same way as there is for football players and on the field between schools. This difference is enough for me to differentiate between the two. It’s not cut and dry, but it stands up for me.

Despite losing the review, it isn’t a total loss for the Northwestern players, or players in all major college sports around the country. I was fairly surprised that they were ever ruled employees, not because I don’t think they are, but because I didn’t think the NLRB would take such a stand. But, the big part that was always going to come out of this was publicity for some of the things that player advocates wanted to change.

Some more restrictive meal plan issues have been changed for athletes. Other issues involving cost of attendance versus actual scholarship totals are being addressed. Finally, the O’Bannon decision is still pending which may give athletes the abilities to keep money in escrow that they earn from use of their names and likenesses by universities, the NCAA, and specifically, video games.

About the author: Colby Rogers

Colby is the Editor-in-Chief, Founder and Lead Contributor to Other League. Also a law student focusing on Labor & Employment law and intersections with law and sports. You can find him on Twitter via @Colby_OL.