College football players can't unionize

The National Labor Relations Board maintained on Aug 17 that Northwestern’s scholarship football players have no right to form a union but failed to answer the bigger question as to whether students should be classified as employees and could unionize in general.


Northwestern’s quarterback drops for a pass against Eastern Michigan in 2009 (Davey83 / Flickr Creative Commons)

On March 26, 2014, the regional director for Region 13 of the National Labor Relations Board issued a decision that said the university’s grant-in-aid scholarship football players were statutory employees under the National Labor Relations Act and could conduct an election on April 25, 2014.

On April 24, 2014, the NLRB granted Northwestern University’s request to review the regional director’s decision. Accordingly, the ballots cast during the April 25, 2014 election were impounded and not counted, pending the board’s decision on review.

After considering about two dozen briefs, the NLRB issued a unanimous decision on Aug 17, declining to assert jurisdiction over Northwestern University grant-in-aid scholarship football players and dismissing the representation petition.

In its decision, which was limited to the admittedly unique facts in this case, the board did not determine whether grant-in-aid scholarship players are employees under the NLRA. Rather, the NLRB, exercising its discretion whether or not to assert jurisdiction, held that asserting jurisdiction in this case would not effectuate the policies of the NLRA to promote stability in labor relations.

Since there’s no route to an appeal by the students, the ballots will be destroyed. It’s possible, though, that other cases like this one will come before the NLRB in the future. “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,” the decision stated.

It seems to put up a roadblock to other college teams forming unions, though. Unless students are first recognized as “employees,” they don’t have rights under the NLRA, and the board failed to make any decision that would move those claims forward, stalling the issue in place and forcing any future union organizers into the same fray of legal debate.

The problem with this case is that the NLRB doesn’t really have jurisdiction over public colleges, because collective bargaining at those schools is governed by state law. Since the NLRB can’t do anything about student-athlete unions at public colleges, the NLRB reasoned that setting up different rules for private colleges—Northwestern is one of only 17 private colleges in the NCAA’s Football Bowl Subdivision—would be disruptive to the system of college athletics.

“In all of our past cases involving professional sports, the board was able to regulate all, or at least most, of the teams in the relevant league or association,” the board wrote.

Editorial

The NCAA prohibits players from being directly compensated for playing, so the NLRB here simply deferred to that association’s rules. It took a long time to reach a non-decision, but here we are. I can see, in some ways, how calling students employees would completely disrupt the dynamic of college sports.

But in other ways, college athletics, especially at FBS schools, may need to be disrupted. Because the football teams require students to give so many hours each week to their obligations as athletes, very little time is available to them, by comparison, to devote to their obligations as students, leading to the obvious conclusion that universities, on a percentage basis, care more about football players as employees than as students.

Furthermore, football teams at FBS schools bring in lots of money for head coaches and the university. The teams are, in many ways, a minor league for the NFL, and perhaps the right thing to do would be to give players the option of becoming either employees or students. Their compensation as employees should be comparable to the amount of money spent on students.

It is an injustice that must be righted, as football players give their name, their bodies, their time, and their treasure to advance the football program at universities that have shown so little regard for the quality of education they receive.

I’m not sure recent reforms, such as guaranteeing four-year scholarships to athletes, will make things right, though they do make conditions better for the student-athletes. It’s just that the very low quality of the education football players at FBS schools receive means the value of the reforms is insignificant compared to the dedication of the football players at those schools.

About the Author

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.