By Bradford L. Livingston, Esq.
On the eve of a new college football season, the referees at the National Labor Relations Board (NLRB) got it right on instant replay: they called off the game. In a ruling yesterday, the NLRB’s five Members unanimously declined to assert jurisdiction over Northwestern’s scholarship football athletes. There will be no union of college football players — at least for now.
In case you forgot the game being played during the 17 months since the NLRB Regional Director’s original decision that scholarship college football players are employees who may form a union under the National Labor Relations Act (NLRA), the facts are this: In early 2014 the College Athletes Players Association or CAPA, a union affiliated with The United Steelworkers, filed a petition seeking to represent Northwestern University’s scholarship football players. Following a hearing before Region 13 of the NLRB, on March 26, 2014, the Regional Director ordered a representation election, finding that it would “effectuate the purposes of the [National Labor Relations] Act to assert jurisdiction over scholarship athletes.” The NLRB conducted an election in April 2014 and impounded the ballots while Northwestern University appealed the Regional Director’s decision to the full NLRB. Following the filing of multiple briefs by both the parties and various amici curiae, the NLRB issued its ruling today. In this case, all 5 current members of the NLRB joined in the decision by outgoing member Harry Johnson, whose term expires on August 27.
While fans often disagree with both the referees’ and replay booth’s calls, this time the referees got it right. In earlier blog posts, College Football Unions: NLRB to Play the Game, Will the NLRB Tackle the NCAA?, College Football Unions: What Game Is Being Played?, College Football Unions: Throw the Flag for a False Start, and in my testimony at a Congressional hearing on the issue, I noted various problems with a finding that college football players could be considered employees under the NLRA.
Although the referees got it right, they did so only by avoiding the central issue in the case. Rather than deciding whether or not scholarship athletes are employees under the NLRA, the Board found an astute and politically correct way for its three-Democrat Member majority to avoid antagonizing their friends in organized labor. Contrary to its Regional Director, the NLRB found that it “would not effectuate the policies of the Act” and therefore — as suggested in our original blog post — declined to asset jurisdiction over Northwestern’s scholarship athlete. In reaching its conclusion, the Board noted that college and professional sports are played not alone but against other teams. And at the professional level, all the teams and their players are typically covered by a common labor agreement. A single team with its own labor agreement would lead to an un-level playing field. Likewise, the NLRB noted that it can only assert jurisdiction over private universities, which represent only 17 of the 125 colleges and universities in the FBS or top level of college football. The vast majority of teams are public colleges and universities beyond the reach of the NLRA and NLRB. Rather than promoting uniformity and stability, the Board recognized that an inherent asymmetry would be created when different teams play by different rules. Therefore, the NLRB decided that a “no call” was the best call. Hedging its bets, however, the NLRB noted that the result might be different if circumstances changed or if a different petition were filed.
Like other instant replay decisions in college football, this decision cannot be appealed any further. Just as the Big Ten or SEC Commissioner cannot overturn referees’ decision on the field or from the instant replay booth, there is no court to which CAPA can now turn. Decisions of the NLRB in representation cases like this are final; so we will never know how Northwestern’s scholarship athletes voted. And while other courts will decide when (and fans can debate) whether college football players should be paid for participating in their sports under other laws and legal theories, it is now clear that college football players cannot unionize and bargain under the National Labor Relations Act (for the foreseeable future). So as we begin a new season of college football, let’s get set to enjoy the game on the gridiron rather than before the NLRB.