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Student athletes came the closest they’ve come to being classified as employees when Northwestern scholarship football student athletes petitioned the National Labor Relations Board in early 2014. That journey, however, came to an end Monday when the full NLRB panel in D.C. dismissed the petition.
In March of 2014, the NLRB’s regional office in Chicago ruled in favor of scholarship football student athletes at Northwestern who had petitioned for a ruling that they were in fact employees and should be able to collectively bargain on issues ranging from compensation to medical care with Northwestern. The ruling set a precedent which would have allowed scholarship football student athletes at other private institutions to seek a similar status.
Although those who favor student athletes having increased rights celebrated the decision, there was some unrest over the unequal situation it would present in college athletics. That’s because the NLRB only has jurisdiction over private sector employees, which means only private universities.
Public university employees are governed by state law, and student athletes at those institutions would have to fight for employee status at the state level. Twenty-four states are “right to work” states, meaning collective bargaining is either prohibited or limited for public employees.
In other words, some college football players would be employees, collectively bargaining with their institutions for better benefits, and some would not.
Can you imagine what recruiting would look like then?
That uneven treatment throughout FBS is part of why the NLRB punted the issue today.
How we got here
Northwestern appealed the regional ruling almost immediately last year to the national board in D.C., and the NLRB has essentially been sitting on the petition since. Northwestern scholarship football student athletes put the union to a vote in April 2014, and the votes have been sealed since awaiting the ruling from D.C.
And now we’ll never know whether those votes achieved the simple majority that would have been required for the student athletes to form a union at Northwestern. Those votes will be destroyed.
The NLRB didn’t reach a decision on whether the scholarship football student athletes are employees. Instead, the five-member board reached a unanimous decision that to assert jurisdiction over the case would not promote labor stability in college football.
Beyond the issue of the small number of private universities at the FBS level (17) to which the NLRB ruling would apply, the 19-page opinion also referenced issues that would arise when student athletes were attempting to bargain with an employer (their university) over policies that are largely governed at a league-wide level by the NCAA.
What does this mean for the future?
There is no avenue for the Northwestern student athletes –€“ or the College Athletes Players Association, which supported the student athletes –€“ to appeal the decision to the board.
The current NLRB, whose members are appointed by the President and confirmed by the Senate, has a Democratic majority seen as being pro-labor, which led many to think there was a real chance the decision would favor the student athletes.
Because the NLRB didn’t make a determination on whether the student athletes are employees, other student athletes could petition in the future. They might not be encouraged by the NLRB’s opinion, however, which stated “scholarship [football] players bear little resemblance to the graduate student assistants or student janitors and cafeteria workers whose employee status the Board has considered in other cases.”