Excerpts from NLRB decision on college unions

Excerpts from Monday’s decision by the National Labor Relations Board tossing out a petition by Northwestern University football players seeking the ability to form a union:

NO PRECEDENT FOR A DECISION

”The board has never asserted jurisdiction, or even been asked to assert jurisdiction, in a case involving scholarship football players or similarly situated individuals and … we decline to do so in this case. Processing a petition for the scholarship players at this single institution under the circumstances presented here would not promote stability in labor relations. Moreover, recent changes, as well as calls for additional reforms, suggest that the situation of scholarship players may well change in the near future.”

LABOR INSTABILITY CONCERNS

”(Labor) issues directly involving only an individual team and its players would also affect the NCAA, the Big Ten, and the other member institutions. Many terms applied to one team therefore would likely have ramifications for other teams. Consequently, `it would be difficult to imagine any degree of stability in labor relations’ if we were to assert jurisdiction in this single-team case … More starkly, Northwestern is the only private school that is a member of the Big Ten, and thus the board cannot assert jurisdiction over any of Northwestern’s primary competitors.”

NO OBVIOUS ANSWER

”The fact that the scholarship players are students who are also athletes receiving a scholarship to participate in what has traditionally been regarded as an extracurricular activity (albeit a nationally prominent and extraordinarily lucrative one for many universities, conferences, and the NCAA) materially sets them apart from the Board’s student precedent. … Although we do not decide the issue here, we acknowledge that whether such individuals meet the Board’s test for employee status is a question that does not have an obvious answer.”

`NOVEL AND UNIQUE’

”We emphasize that this case involves novel and unique circumstances. The board has never before been asked to assert jurisdiction in a case involving college football players, or college athletes of any kind. There has never been a petition for representation before the board in a unit of a single college team or, for that matter, a group of college teams. And the scholarship players do not fit into any analytical framework that the board has used in cases involving other types of students or athletes.”

FBS LOOKS LIKE A PRO SPORT

”(Bowl Subdivision) football does resemble a professional sport in a number of relevant ways. In particular, institutions that have FBS teams are engaged in the business of staging football contests from which they receive substantial revenues (via gate receipts, concessions and merchandise sales, and broadcasting contracts) … Put differently, unlike other industries, in professional sports, as in FBS football, there is no `product’ without direct interaction among the players and cooperation among the various teams.”

IS THE EFFORT OVER?

”Our decision today is limited to the grant-in-aid scholarship football players covered by the petition in this particular case; whether we might assert jurisdiction in another case involving grant-in-aid scholarship football players (or other types of scholarship athletes) is a question we need not and do not address at this time.”

Online:

NLRB decisions: https://www.nlrb.gov/cases-decisions/board-decisions