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Patrick Hruby

NLRB To Northwestern Football Union: ¯\_(ツ)_/¯

The National Labor Relations Board declined to assert jurisdiction over the Northwestern University football unionization case. Now what?
By Patrick Hruby | VICE Sports | August 2015


The national office of the National Labor Relations Board on Monday declined to assert jurisdiction over a unionization bid by Northwestern University football players, leaving the effort dead in the water and surprising observers by essentially dodging the entire issue. What exactly happened, and what does this mean for the ongoing battle over college sports amateurism? Here are five takeaways:

1. The NLRB wants no part of this fight. After the five-member board released its decision, a number of people drew the same conclusion: the NLRB punted.

Au contraire: punting requires being on the field, handling the snap, putting yourself in harm's way. It requires risk, or at least doing something. The NLRB did nothing, issuing a 19-page decision that amounts to suiting up, buckling one's chinstrap, and never leaving the locker room.

Last year, NLRB regional director Peter Sung Ohr ruled that Northwestern scholarship football players qualified as school employees under federal law, and as such were free to hold an election to unionize. The players did just that. Meanwhile, Northwestern appealed Ohr's decision to the national NLRB office, arguing that it was mistaken.

As such, the question before the NLRB was simple: Are Northwestern football players statutory employees of the school, or not?

In his ruling, Ohr found that the common law definition of an employee—a person who performs services for another under a contract of hire, subject to the other's control or right of control, and in return for payment—applied to lead petitioner Kain Colter and his teammates, who sign written agreements to provide football-playing services to Northwestern in exchange for scholarships that have significant financial value, and do so under the control of coaches and administrators. Northwestern's appeal asserted that none of this matters, because Colter and Co. are simply students who happen to play football, and therefore can't hold a campus job doing the same.

Oddly enough, the NLRB didn't address Ohr's ruling. Nor did it grapple with Northwestern's counterpoints. It didn't even consider the statutory employment question, beyond a footnote stating it "does not have an obvious answer." Thanks, Sherlock!

Instead, the NLRB decided to sit out, asserting that any attempt to answer the question—either for or against the players—had the potential to change the college sports status quo, and therefore "would not serve to promote stability in labor relations."
Former Northwestern University quarterback Kain Colter led his teammates' unionization push, which now is in limbo. --Photo by David Banks-USA TODAY Sports
2. Logic is a flat circle. Defenders of college sports amateurism—including the National Collegiate Athletic Association, one of the many groups that filed supporting briefs with the NLRB—typically make a core argument that's a daffy mix of semantics and circular reasoning: college athletes can't be employees because they're amateurs, and they're amateurs because they can't be employees.

The NLRB's non-decision is rooted in the same sort of non-logic. In a general sense, the board was being asked to decide if college athletes qualify as labor. Yet doing so, according to the board, could potentially destabilize labor relations between the school and its athletes—labor relations that don't technically exist unless the board makes said decision.

More specifically, the NLRB wrote that because it only has jurisdiction over private schools such as Northwestern—public schools are governed by state labor laws—and because college football is played among private and public schools, asserting jurisdiction over Northwestern football would not help to promote "uniformity and stability." Sure, the NLRB is arguing, we could affirm that Northwestern players qualify as school employees and have the right to unionize, but what would that mean for players at the University of Michigan, who are forbidden by recent state law from doing the same?

As economist and VICE Sports contributor Andy Schwarz points out, this seems to leave college athletes in something of a Catch-22. They can't organize a union at an individual private school because said school will play public schools not under the NLRB's jurisdiction. At the same time, they can't petition for a national union because some of the would-be employers, those same public schools, are outside of the NLRB's jurisdiction.

The entire movement against college sports amateurism is a movement for robust competition over enforced conformity, for a free athletic talent market instead of scholarship price-fixing conducted by a cartel of schools. In begging off the Northwestern case in order to preserve the "uniformity and stability" of college sports, the NLRB is basically siding with an existing union—the NCAA and its member schools—over a potential one, and pushing the latter group toward action, like a player strike, that could do far more to disrupt campus athletics than employee status or collective bargaining ever would.

Why would a union-friendly NLRB board largely made up of Obama administration appointees leave a nascent, high-profile unionization effort high and dry? Boston-based labor attorney David M. Mandel told USA TODAY that political logic may have been a factor. The NLRB only governs private schools—public schools are governed by state law—and since the majority of big-time football programs are at public institutions, football player unions at Northwestern and other private universities might have had minimal, weakness-in-small-numbers bargaining leverage.

"I think that the last thing that the NLRB wants, and unions generally want, is a high-profile example of union representation proving to be ineffectual," Mandel told USA TODAY.

That may be true, but it's also the case that being recognized as school employees was as much the point of the Northwestern player effort as forming an actual union. And would the United Steelworkers have supported the players if it had seen a potential union as toothless?

3. The unionization effort may not be over. While the NLRB non-decision is a major victory for the college sports status quo, it isn't a complete loss for athletes. The board didn't find fault with the facts underpinning Ohr's decision. It didn't say he was wrong. It also wrote that its reasons for passing the buck were limited specifically to this particular case:

We are declining jurisdiction only in this case involving the football players at Northwestern University; we therefore do not address what the Board's approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities). The record before us deals solely with Northwestern's football team and, in the absence of any evidence concerning the players and athletes at other schools, we do not decide any issues about them today.

If Stanford University football players want to fill out union cards and petition for employee status, they can. If Northwestern basketball players want to do the same, they can, too. Public school athletes in at least a dozen states also could follow suit. The group attempting to unionize Northwestern players—the College Athletes Players Association (CAPA)—is backed by the Steelworkers and led by former University of California, Los Angeles linebacker-turned-player advocate Ramogi Huma, who has been campaigning for campus athletes' rights for more than a decade.

Don't expect them to simply give up.

"We're surprised and a bit disappointed," Huma told USA TODAY about the NLRB decision. "Just to clarify, too, this doesn't close the door on unionization at private schools. This doesn't preclude various other teams and sports from bringing something.

"From our perspective, it's not a loss, but it's a loss of time."

According to ESPN legal analyst Lester Munson, the Northwestern players could also appeal the NLRB's decision in federal district court, provided they can show that the board exceeded its jurisdiction. Of course, as Munson points out, that may be almost impossible, given that the board shied away from asserting jurisdiction in the first place.
The NLRB's non-decision was a good one for guys who don't like labor unions. --Photo by Bob Donnan-USA TODAY Sports
4. The Empire strikes back. While the NLRB didn't rule in favor of Northwestern, its non-ruling contains a number of passages that appear to be at least somewhat sympathetic to the school's arguments against athletes-as-employees, as well as the NCAA's arguments supporting amateurism in general.

First, both the association and Northwestern have maintained that any change allowing more of a free market for athletes would throw college sports into chaos, producing a parade of horribles ranging from slashed scholarships to non-revenue sport team cuts to major conferences like the Big Ten dropping out of Division I altogether. Moreover, they argue, competitive balance would be ruined. (Say goodbye to the carefully regulated Any Given Saturday world of amateur campus athletics, where Troy State University and the University of Alabama spend an equal amount of money on their respective football coaches and Ball State University and the University of Kentucky fiercely compete for the same basketball recruits). Read between the lines of the NLRB's desire to preserve "stability," and it's easy to conclude that the same scare tactics that helped the NCAA win a recent stay of a federal injunction that would have allowed trust fund payments to football and men's basketball players may have worked here.

Second, the association and its member schools—plus the power conferences—recently have responded to legal pressure, public grumbling, and Congressional shaming by announcing better benefits for athletes: four-year scholarships, cost-of-living stipends, free iPads, and so on. The implicit bargain being offered? Hey, we'll cut athletes a slightly bigger piece of the money pie, so long as you let us continue to exclusively hold the knife. Again, the NLRB appears to be paying attention, supporting its non-decision by noting that "the terms and conditions of Northwestern's players have changed markedly in recent years and that there have been calls for the NCAA to undertake further reforms that may result in additional changes to the circumstances of scholarship players."

Perhaps most important, the NLRB seems to view college athletes the way the NCAA, its schools, and—truth be told—many fans do: not as ordinary American citizens entitled to equal economic rights and protections under labor and antitrust law, but as a special, magical, downright unicorn-ish group of young men and women who should be placed in a special jewel box labeled campus sports and subjected to whatever rules and restrictions make the rest of us feel warm and fuzzy. College athletes, the NLRB writes, are not like the graduate student teaching assistants or the student janitors and cafeteria workers the board has considered in other labor cases because, well, sports. Likewise, they're not akin to "athletes in professional leagues," because, well, they have to go to class, and besides, they are "prohibited by NCAA regulations from engaging in many of the types of activities that professional athletes are free to engage in, such as profiting from the use of their names or likenesses."

In short, college athletes are different than you and me, because if they weren't, they wouldn't be college athletes. And also because the association says so.

So long as this sort of gooey thinking remains prevalent—both in society at large and among power brokers on campuses and in the federal government—the NCAA and schools such as Northwestern will be operating not only from a position of financial and political strength, but also of philosophical sympathy. As the NLRB noted, it previously has ruled on cases involving college coaches, referees, and physical plant employees supporting athletic events; in addition, the board wrote that "our decision today should not be understood to extend to university personnel associated with athletic programs."

Well, of course not. Those people can't throw a football.

5. Sooner or later, Congress is going to reshape college sports. I've written this before and I'll write it again: in the end, the future of the college sports economy is going to come down to a Grand Bargain between athletes and schools, and that bargain will be struck with the help of Congress. While ruling against the NCAA in a federal antitrust lawsuit brought by former UCLA basketball player Ed O'Bannon last year, judge Claudia Wilken suggested as much; in the NLRB non-decision, the board repeatedly mentions an "absence of explicit Congressional direction" on the question of college athletes as school employees, all but begging Capitol Hill for guidance.

What will the future look like? It could be a totally free market. It could be an amateurism-preserving antitrust exemption. Everything currently happening—NCAA power conference autonomy; stepped-up Washington lobbying; the O'Bannon case and other antitrust lawsuits; the Northwestern unionization push; bills calling for a Presidential Commission on college sports—is an effort by one side or the other to create leverage and get more of what they want. Ultimately, I think Congress will make the final call; unlike the NLRB, they can't ride the bench forever. For now, when and how lawmakers decide to get into the game remains anyone's guess.

Read the original article at VICE Sports