NLRB unanimously rules Northwestern players can’t unionze

Northwestern players will not be allowed to unionize, says the NLRB. (USATSI)
Northwestern players will not be allowed to unionize, says the NLRB. (USATSI)

Northwestern football players are not university employees and cannot attempt to unionize, the National Labor Relations Board in Washington announced Monday.

The five-member board sided unanimously, disagreed with the ruling by NLRB regional director Peter Sung Ohr from last March. Northwestern had appealed Ohr’s ruling, which came to two major conclusions: (1) Athletic scholarships equate to compensation in exchange for working for the school, and (2) coaches have strict control over college athletes.

Instead, the national branch of the NLRB determined that certifying the players’ petition “would not promote uniformity and stability in labor relations” and collective bargaining could potentially upset the balance of competition.

It’s another big victory for the NCAA, which had strongly supported Northwestern’s appeal against employee status. If the initial NLRB ruling had been affirmed, the precedent would have held for all private universities.

Northwestern players cast ballots in April 2014 to vote on whether they favored a union. The ballots were immediately impounded pending the NLRB decision and now won’t be counted. Northwestern administrators and coaches urged players not to unionize, and it’s possible their position prevailed with the players.

The NLRB’s ruling on Monday did not decide whether the Northwestern players are employees. Instead, the board wrote “we address this case in the absence of explicit congressional direction regarding whether the Board should exercise jurisdiction. We conclude that asserting jurisdiction in this case would not serve to promote stability in labor relations.”

Northwestern praised the decision and said in a statement, “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.”

Northwestern coach Pat Fitzgerald said in a statement that his players “displayed maturity beyond their years through this process, and the experience has unquestionably brought us closer together as a football family.”

The petition had been filed by the College Athletes Players Association (CAPA). Ramogi Huma, who led the unionization efforts with former Northwestern quarterback Kain Colter, described the ruling as “obviously disappointing. For us, it’s not a loss, but it’s a loss of time. It’s a delay. In the meantime, players don’t have the leverage they need to protect themselves.”

Huma pointed out that the NLRB decision does not prohibit other scholarship football players from attempting to unionize. Huma declined to say if he will attempt a try to unionize again and said he has no regrets about the efforts.

“I think it was one of the best decisions that I made in this fight and it’s because I did it the other way for 14 years and really didn’t see much progress,” he said. “What’s gone on in the last year is night and day. Instead of the NCAA trying to make excuses denying players’ rights, you see (NCAA president) Mark Emmert basically taking our side and going down our platform and saying these are the things we hope to accomplish.”

NCAA chief legal officer Donald Remy said the NLRB decision was “appropriate,” noting that the NLRB recognized the NCAA’s efforts to better support college athletes. “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 in a statement.

In an interview prior to the ruling, CAPA lawyer John Adam said, if the Washington D.C. board rules against the union, that essentially ends the case.

“We cannot appeal it or challenge it further,” Adam said. “It’s kind of definitive at that point, although it depends on what they exactly say.”

NLRB opinions from the ruling

If any college players ever attempt to unionize again, the NLRB’s 19-page decision will serve as a precedent. Here are some opinions from the decision:

* The NLRB punted on the question about whether college athletes are employees. “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.” The NLRB said there’s no precedent to assert jurisdiction in this case.

* Scholarship football players at Northwestern “bear little resemblance to the graduate student assistants or student janitors and cafeteria workers whose employee status the Board has considered in other cases. 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 extracuricular activity … materially sets them apart from the Board’s student precedent.”

* FBS football “does resemble a professional sport in a number of relevant ways.” The NLRB noted that teams stage football games in exchange for substantial revenue.

* Northwestern’s status as the only private school in the Big Ten appeared to be a factor in the decision. The NLRB said in past cases with pro sports it could regulate most or all of the teams. “As a result, labor issues directly involving only an individual team and its players would also affect the NCAA, the Big Ten, and the other member institutions.” The NLRB noted that the states of Ohio and Michigan — which have three Big Ten universities — have laws specifying that scholarship athletes are not employees. Ohio and Michigan created those laws shortly after the Northwestern unionization attempt began.

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