Northwestern Football Players Cannot Form Union, NLRB RulesMason Levinson
Unionizing only one school would upset competition, board says
NLRB doesn't address whether players are school employees
Northwestern University football players cannot form a union, the National Labor Relations Board ruled, overturning a March 2014 decision and ending the players’ bid to change the college sports landscape.
In its unanimous decision, the labor board skirted the issue of whether the players are employees and left open the door to other college athletes winning the right to unionize.
The board cited the unique nature of college sports in saying it would foster instability to permit Northwestern football players to form a union while players elsewhere in the National Collegiate Athletic Association are not.
"Our decision is primarily premised on a finding that because of the nature of sports leagues...it would not promote stability in labor relations to assert jurisdiction in this case," the decision said.
This was the first case before the NLRB involving college athletes of any kind, and it’s the first time the board has been asked to certify a single-team unit in any sport. Of the 125 football programs in the NCAA’s Football Bowl Subdivision, the top echelon, just 17 are private schools and Northwestern is the only one in the Big Ten Conference. The NLRB only has jurisdiction over private schools, while state labor boards oversee public institutions.
Surprised by Ruling
The ruling was surprising, according to Brian Paul, a labor attorney at Michael Best & Friedrich LLP in Chicago.
“What the NLRB has done is invite the group to come back if the landscape changes enough to warrant unionization,” Paul said in a telephone interview. “The single school doesn’t have enough influence on how the FBS as a whole is operated.”
Northwestern is pleased by the decision and considers its athletes to be students first and foremost, Vice President for University Relations Alan K. Cubbage said in an e-mailed statement.
“Northwestern’s position remains that participation in athletics is part of the overall educational experience for our student-athletes, not a separate activity,” he said.
Former UCLA football player Ramogi Huma, founder of College Athletes Players Association, which was trying to organize the Northwestern players, declined to comment before reading the ruling.
Lamar Alexander, the Republican senator from Tennessee who is chairman of the Senate labor committee, said in a statement that preventing the union effort was the right thing for student athletes but that the board had done them “no favor by leaving the question open for the future.”
“I do not believe that Congress, when it wrote the National Labor Relations Act, intended that students – whether they be athletes or graduate assistants - be considered employees of their university,” Alexander said.
The unionization effort, along with recent lawsuits seeking to increase college players’ rights, had the potential to upend the business of college sports. Schools in college football’s top division turned a $1.4 billion profit on $3.4 billion in revenue in the fiscal year ended June 2014, according to data schools submit to the U.S. Department of Education.
The NLRB’s decision leaves no recourse for Northwestern players to appeal.
“That is it,” Doug Allen, a labor-relations professor at Penn State University who was assistant executive director of the NFL Players Association from 1982-2007, said about such an outcome prior to the NLRB review. “That’s a final and binding result.”
There were 76 scholarship players at the Evanston, Illinois, school who were eligible -- though not compelled -- to vote in April 2014 over whether to form a union. They did vote, needing a simple majority for approval, though those ballots now will be destroyed without being counted.
A month earlier, an NLRB regional director upheld the players’ right to vote, though the Washington-based board granted the school’s request to review the initial ruling and said players’ ballots would be impounded until it decided.
Of the 111 student-athletes who will be on the Wildcats’ roster this fall, from 44 to 47 of them will have voted in the April 2014 NLRB election, estimated Northwestern spokesman Paul Kennedy.
The group trying to organize the players was seeking guaranteed coverage of sports-related medical expenses for current and former athletes, sponsorship compensation, an increase in scholarship value and a trust fund to help former players finish their degrees.
Many of those issues have been addressed by the sport’s overseers over the ensuing months, and college athletics have changed significantly.
In August 2014, a federal court ruled that student athletes should be allowed to seek a share of $800 million in annual broadcast revenue. The NCAA has appealed the ruling on the lawsuit filed in 2009 by ex-college basketball player Ed O’Bannon.
That same month the NCAA altered its governance, granting partial autonomy to the five richest conferences.
In January, those conferences voted to give their schools the option of offering scholarships that meet the cost of attendance, estimated to provide an additional $3,000 annually to student athletes. With 36,000 people in that group, it would be a commitment of around $108 million.
Both the Big Ten Conference, of which Northwestern is a member, and Pac-12 Conference now guarantee four-year scholarships. Northwestern has done so since 2011.
The Pac-12 also decided in October that athletes injured during college competition would have medical coverage for up to four years after graduating.
“A lot of these things that we’ve been fighting for for decades, they finally came about because college players decided to stand up for what they believe in,” former Northwestern quarterback Kain Colter, the face of the unionization push, said in a telephone interview. “This wasn’t the outcome that we wanted but the big thing is that they didn’t rule against us; they basically decided not to rule.”
Colter said on a media conference call in January 2014 that the NCAA system “resembles a dictatorship” that left players without any way to input or negotiate their views.
Colter wasn’t picked in the 2014 NFL draft, though he spent the following season on the Minnesota Vikings practice squad. He was cut from the team in May and said he’s still hoping to be picked up by an NFL franchise.
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