NLRB Punts in Northwestern University Football Case, Drops Ball
September 21, 2015 by Teague Paterson
After much anticipation, the NLRB has issued a decision in its review of a directed union representation election among Northwestern University football players. The Case is Northwest University (College Athletes Players Association) 362 NLRB 167 (2015).
We reported on the prior decision by the Regional Director ordering the election here: http://www.beesontayer.com/2014/04/nlrb-makes-call-for-college-football-union, which provides background not covered in this update. The NLRB’s recent decision is anti-climactic, as the Board decided that for policy reasons it would decline to assert its jurisdiction or decide the question whether college athletes receiving scholarships are employees who may unionize.
Has the Board resolved the question of whether student-athletes in private universities can organize a union? No, the answer is left for another day.
College football and basketball is big business. Student athletes work punishing training schedules to which their education takes a backseat. They gain little under the present college athletic system themselves, although collegiate athletics are the source of vast revenues. Since the Board has declined to take jurisdiction or to decide the essential question of their status of “employees,” these players are left hanging.
By failing to set a standard or evaluate when collegiate athletes may be considered employees entitled to the protections of the NLRA, the Board has created uncertainty and insecurity. Can collegiate athletes engage in concerted activity? Are they protected from retaliation under the NLRA if they decide to agitate and advocate for better terms?
The Board declined to decide this issue only with regard to Northwestern University football players, so the issue could still arise in the future. Further, in instances where the Board declines jurisdiction, under section 14(c)(2) of the Act, state courts or agencies may fill the gap and resolve labor disputes over which the NLRB has declined jurisdiction. Historically, nearly all of the Board’s declinations to assert jurisdiction over industries have been reversed or dramatically narrowed, for example, in the cases of charitable organizations, nonprofits, certain law firms and lobbyists. The one counter-example is horse- and dog-racing industries, an exception adopted due to the heavy involvement and regulation by the states and the sporadic nature of the employment.
It may be that future Board cases involving collegiate athletes will arise as unfair practice charges in the event universities retaliate against athletes who seek to improve their conditions and the terms. Although we do not hope for retaliation, we do hope that collegiate athletes assert their rights to equitable terms and conditions. Since labor rights are always hard-won, such cases may ultimately force the Board’s hand.
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