The National Labor Relations Board announced Monday that it would not wade into the case of Northwestern football players who were seeking to unionize, meaning college football will remain union-free, at least for the time being.
In a statement, the five-member board in Washington said it did not feel it had jurisdiction in the case. Asserting such powers, the agency said, would not "promote stability in labor relations," as the board is tasked with doing.
"For now, it seems the idea that these young men will be able to organize themselves into a union is not on the horizon," said Robert McCormick, a former labor attorney at Michigan State University. "For the time being, it does seem to be the end of the line."
In setting the case aside, the board declined to take on its thorniest question -- whether or not scholarship athletes are controlled enough by their schools to be considered employees and not just student-athletes.
In a statement, Northwestern officials said they were "pleased" by the board's decision.
"Northwestern considers its students who participate in NCAA Division I sports, including those who receive athletic scholarships, to be students, first and foremost," the school said. "We applaud our players for bringing national attention to these important issues, but we believe strongly that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes."
One of the main reasons the board declined to assert jurisdiction is the makeup of NCAA football. Many of the colleges with scholarship athletes are state schools and not private like Northwestern. That means players at those schools would be subject to state collective bargaining laws. But recognizing Northwestern players as employees, the board said, could rock all of college football.
"Asserting jurisdiction over the single team in this case would likely have ramifications for those other member teams," the agency said.
Even if the players won't be unionizing under federal law anytime soon, that doesn't mean the organizing campaign is scuttled, said Fred Feinstein, a former general counsel for the NLRB. Players at state schools could still try to be recognized as union members under state law, he noted.
"If they make inroads in one state, it's conceivable others would follow," he said.
Feinstein also noted that they could bargain collectively outside the framework of labor law to have their grievances addressed, much like fast food workers have been doing.
"They can still organize, and they can still try to figure out the kinds of influence and leverage they might have to address some of the concerns that led them to file this petition in the first place," he said.
The Northwestern players filed their precedent-setting union election petition in January 2014. Two months later, Peter S. Ohr, the board's regional director in Chicago, ruled that the players qualified as employees who could organize, allowing them to cast ballots in a union vote. Those ballots were impounded pending an appeal by the school, but the results of that election would now be moot.
The College Athletes Players Association, which backed the union drive, did not immediately respond to a request for comment. Kain Colter, the former Northwestern quarterback who led the organizing push, tweeted that he was "disappointed by the NLRB ruling."
NCAA chief legal officer Donald Remy called the decision "appropriate" in a statement.
"This ruling allows us to continue to make progress for the college athlete without risking the instability to college sports that the NLRB recognized might occur under the labor petition," Remy said.
Noting that the union drive helped force some changes that benefit players, Rep. Jan Schakowsky (D-Ill.), whose district includes Northwestern, still said she is "sorry that the NLRB has decided against college athletes seeking a seat at the table."
"These athletes dedicate 40-plus hours a week to their sport, helping to raise millions of dollars for the University each year," Schakowsky said in an email statement. "They deserve to stand on an even playing field with the University in negotiating for better health coverage while they are playing for their school and after their careers end, for guaranteed 4-year scholarships, and for a say in practice time and intensity. This decision denies them that opportunity."
Correction: This post originally said the players could take their case to federal court. That is not an option in a representation case such as this.