The National Labor Relations Board announced Monday that it will not uphold its Chicago office's 2014 ruling that Northwestern's football players are employees of their university. That means athletes in private schools will not be able to unionize. The board punted on deciding whether athletes are employees, but will not let Northwestern players unionize.
The main issue in the board's eyes? Deciding on the difference between public and private schools, since public schools would not be covered under this ruling:
Even if the scholarship players were statutory employees (which, again, is an issue we do not decide), it would not effectuate the policies of the Act to assert jurisdiction.
Because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction.
This is an unexpected decision that delivers a blow to the push for expanded athlete rights.
Peter Sung Ohr of the Chicago office left little doubt in his ruling that athletes should be employees, citing the time constraints and separate rules for football players. The national board includes appointees of President Barack Obama, who generally tend to lean pro-union.
One Northwestern official had told me the NLRB reversing the Chicago decision would be a departure similar to conservative John Roberts upholding Obamacare.
The full ruling:
In the case of Northwestern's possible union, this doesn't mean much. According to numerous reports, the players likely voted it down anyway.
However, it is a major setback to the possibility of a union starting there or elsewhere. Had the board ruled in favor of the players, even if they'd declined to unionize, the door would still be open for football and men's basketball players at other private schools like Boston College and Stanford to unionize. Ramogi Huma, the president of the proposed union, said that there could be more unionization in the future.
"We're surprised and a bit disappointed," longtime college athlete advocate Ramogi Huma told USA TODAY Sports. "Just to clarify, too, this doesn't close the door on unionization at private schools. This doesn't preclude various other teams and sports from bringing something.
If a private school team were able to unionize, that school could gain significant recruiting advantages not available to others. Medical benefits that could come from collective bargaining would be a plus, but the mere fact that athletes could have a say could be a big draw.
Going forward, any potential unions could likely only come from state legislatures or city governments. While Boston put together an athlete "Bill of Rights," Ohio's state legislature drafted an amendment to state that college athletes are not employees. Given the anti-union sentiment among conservatives, who make up a majority of college football fans, it's unlikely we'll see many states push for unionization of college athletes.
That means that for now, any change to college sports is going to come from the courts. The antitrust lawsuits against the NCAA were already going to cause more change than unionization anyway. The majority of union changes likely would have centered around improved medical coverage. Now, the courts and (potentially) Congress are the ones who hold the keys.
This is the second big win in a row for the NCAA, which was granted a stay in the O'Bannon injunction, which would have allowed college athletes to start getting paid on Aug. 1. The NCAA had struggled to win in court, but has had much more success on the appeals level. Northwestern was understandably excited about this ruling, too.
Northwestern spokesman Al Cubbage said in a statement that the university is "pleased" by the decision:
"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.
However, the association still has a lot to worry about on the legal front, with the O'Bannon decision in limbo and a major challenge coming from prominent sports attorney Jeffrey Kessler.