Labor Board Punts on Northwestern Football Case

Illinois and Northwestern players line up at the line of scrimmage prior to the snap of the football during a NCAA Football g
Illinois and Northwestern players line up at the line of scrimmage prior to the snap of the football during a NCAA Football game between the Illinois Fighting Illini and the Northwestern Wildcats in Evanston, Illinois on Saturday, November 29, 2014. Illinois defeated Northwestern 47-33. (AP Photo/Scott Boehm)

Congress created the National Labor Relations Board in 1935 to administer national labor policy. For the most part, over eighty years of decision making, the Labor Board has protected the rights of employees to decide whether they wish to unionize or to remain non-union free. The Labor Board has used the sacred American mechanism of the secret election to insulate workers from undue pressure in making that choice. Congress specifically excluded certain classes of employees from the coverage of the Labor Act, but otherwise left it to the Labor Board to decide when it might decline to accept jurisdiction.

The Labor Board exercised that discretion to decline to assert jurisdiction over big-time college athletics, in particular, the Northwestern University football team, because of "the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of [Division 1] football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction)." It concluded that "it would not promote stability in labor relations to assert jurisdiction in this case." The media had no idea what any of this meant and simply reported the decision as NCAA 1, rights of employees 0.

The Labor Board offers little more by way of explanation, other than that it had never before been asked to assert jurisdiction in a case involving college athletes. That is true, but, from its earliest days, the Labor Board has always been presented by cases of "first impression." The Regional Director in Chicago had concluded in 2014 that the so-called "student athletes" were "employees" covered by the Labor Act. The Labor Board repeatedly states in its opinion that it was not facing that core issue in the Northwestern case, although that was the question upon which the case was argued.

What could the Labor Board have meant? The villain in the piece is once again the NCAA, which has set the detailed rules of college athletics in order to maintain a level playing field. Colleges and universities, we are told, "have banded together" to form the NCAA and delegated authority to the Association to enforce its rules and regulations. Let's assume that the Regional Director was correct that the Wildcat football players were employees (as well as students) and a majority then voted to be represented by the College Athletes Players Association. How could collective bargaining in Evanston, Illinois upset this arrangement?

The Labor Board says that bargaining between one team and one school "would likely have ramifications for other teams." This is always the case with collective bargaining. If one employer in a non-unionized industry is compelled by law to bargain collectively with a union of its employees, that "would likely have ramifications" for other employers. That has never stopped the Labor Board in the past, because the Labor Act protects the employees' right to organize.

The Labor Board appears to be concerned that most big-time, football-playing schools are public entities not covered by the Labor Act. Why should that fact mean that employees of a private university cannot unionize? What could happen in negotiations that would create the "instability" in labor relations about which the Labor Board seems so concerned?

If the parties in bargaining agreed to terms and conditions of employment that would violate NCAA rules, that would be most disruptive. Much the same result could follow in any industry that is non-union. Yet, parties can through negotiation address terms and conditions of employment that do not have any impact on sports competitors or NCAA regulations. Were the union of Northwestern football players to propose improvements that would conflict with NCAA rules, the University could just say "no." The Labor Act does not require either party to make a concession of any kind as long as it bargains in good faith.

The Labor Board ends its opinion by noting how the life of college athletes has improved in recent years. Now players can be given guaranteed four-year scholarships, as opposed to the one-year renewable scholarships previously allowed. Players can now receive scholarships that cover the full cost of attendance. Does anyone think this would have occurred in the absence of the threat of unionization? Unions change employee work lives even if they are not successful in organizing. Now, of course, the NCAA and the major football conferences no longer need to fear the prospect of organization. Does this effectuate the purposes of the Labor Act?