On Monday, the National Labor Relations Board rejected a historic attempt by Northwestern University football players to unionize as employees of the school. The precedent-setting decision will make it extremely difficult, if not impossible, for college athletes to formally join labor unions in the future, forcing players to pursue other ways to change how they're treated by their schools and the NCAA.
In their ruling, the five-member board decided unanimously that it should not assert the agency's jurisdiction in the case, essentially dodging the complex question at its core -- whether schools exert enough control over scholarship athletes for them to be considered employees. Many experts were not surprised by the ruling. Though the board's liberal majority may well have sympathized with the student-athletes, a ruling in favor of them could have been politically explosive.
Labor attorney Bradford Livingston, who testified on the matter before Congress as a guest of Republicans, called the ruling "a 75-yard punt, down to the one yard line."
Any board members disposed to letting the players unionize "were caught between a rock and a hard place," said Livingston, of Seyfarth Shaw. "Had they decided that these individuals were in fact employees and had gone ahead and counted the [union election] ballots, I think there would have been a highly negative reaction, not only in the entire higher education and business communities, but in Congress as well. And it is Congress that funds the NLRB."
The narrow decision marks the end of the road for any Northwestern players who were hoping to have a union to bargain on their behalf. And though it does not rule out unionization for college athletes in general, it leaves them with few viable options moving forward.
Because federal labor law would apply only to athletes at private universities -- 17 of the 125 that make up the NCAA’s top division -- players at public colleges and universities could still seek to organize under state labor laws. But given the federal board’s decision and the politically fraught nature of the case, labor experts said state boards would likely be reluctant to grant athletes union rights.
“I would not predict that any state, even a state that is perceived to be fairly union friendly, would open the door to this type of organizing,” said Jonathan Fritts, a partner at Morgan Lewis & Bockius in Washington, D.C.
And though there are ongoing legislative efforts to extend employee rights to athletes in states such as Connecticut, those protections would be limited solely to athletes at public schools within the state. Any major organizing campaign built around this tactic would therefore have to be piecemeal.
Though ultimately unsuccessful before the labor board, the Northwestern union movement, alongside other causes that brought awareness to issues facing college athletes, was not without its achievements. The Big Ten Conference, of which Northwestern is a member, and others have mandated that schools provide four-year guaranteed scholarships to athletes, and the NCAA has relaxed rules on meal allowances.
The Northwestern players also won a ruling from NLRB Regional Director Peter S. Ohr that they qualified as employees, a detailed tract that blew apart the “student-athlete” concept propagated by the NCAA. Ohr’s decision could be “persuasive, if not precedent” in future cases involving athletes’ rights, said John G. Adam, an attorney who represented the College Athletes Players Association, the players' would-be union, in front of the labor board.
Michael Wasser, policy analyst at Jobs with Justice, a worker advocacy group that supports the athletes, said Northwestern's pro-union players had plenty of reasons to "hold their heads high" despite Monday's ruling.
"The decision doesn't vindicate Northwestern or the NCAA," Wasser said. The board "didn't make a decision on college athletes being employees or not. In many ways, the players demonstrated that when they spoke up about issues and came together and used a collective voice, they pushed for changes that happened for all athletes and that the NCAA had been unwilling to make. They can take, in large part, responsibility for those changes."
The players can continue to press for policy changes at their schools and in the NCAA, even if they aren't recognized under federal collective bargaining law, Wasser noted. Plenty of workers are agitating outside the traditional union framework these days -- fast-food workers, taxi drivers and domestic workers, to name just a few. Such workers may not be able to secure union contracts, but they can still pressure their companies and their industries into raising pay and changing workplace policies.
Such campaigns typically rely on the funding and institutional support of established unions, and the Northwestern effort was no different. It has been backed by the United Steelworkers union. Despite the setback at the labor board, the union's president, Leo Gerard, said Monday that the steelworkers "will not stop fighting until athletes secure the basic protections they so desperately need."
The NLRB’s ruling may be the “end of the line” for a traditional organized labor movement in college sports, Fritts said. But even if it is, current and former athletes are still pushing for major changes to the collegiate landscape through other legal avenues. The NCAA is currently appealing a federal judge’s ruling that granted athletes a share of revenues generated from their names, images and likenesses, and it is also facing a major antitrust suit from prominent sports labor attorney Jeffrey Kessler that seeks to create a free market for college athlete compensation.
Those suits may force larger -- and more sudden -- changes to college sports than an organizing push could have.
“If Jeffrey Kessler wins,” said Adam, the CAPA attorney, “that will open the NCAA up to issues that will be far more difficult for it to deal with.”