Yesterday, in a highly anticipated decision, the National Labor Relations Board (the Board) declined to exercise jurisdiction over the College Athletes Players Association’s (CAPA) representation petition. CAPA asked the Board to find that scholarship football players at Northwestern University are employees within the meaning of Section 2(3) of the National Labor Relations Act (the Act), thereby opening the door to unionization. Although the Board chose not to determine whether grant-in-aid scholarship football players at Northwestern are “employees” under the Act—even noting that the question does not have an “obvious answer”—the Board found that asserting jurisdiction in the case would not promote the purposes of the Act.
CAPA’s effort to unionize Northwestern University’s scholarship football players has generated headlines since it began. In January 2014, Northwestern University scholarship football players became the first student athletes in the history of college sports to file a petition with the Board seeking labor union representation. Northwestern University challenged the petition, arguing among other things that scholarship football players are students first and foremost. NCAA Chief Legal Officer Donald Remy said the union effort “undermine[d] the purpose of college: an education.” Backed by the United Steelworkers, CAPA argued that the football players receiving grant-in-aid scholarships are “employees” within the meaning of the Act, and therefore are entitled to choose whether to be represented for purposes of collective bargaining.
Last March, following a hearing, Peter Sung Ohr, the Regional Director for the Board in Chicago, agreed with CAPA. Ohr concluded that the scholarship football players were effectively “employees” within the meaning of the Act because they performed valuable services for the university in exchange for compensation and were subject to the “strict and exacting control” of the university in their performance of football duties. Director Ohr ruled that scholarship athletes were an appropriate bargaining unit and directed that an election take place. Northwestern University immediately filed a request for review, which the Board granted.
At the Board’s invitation, the parties and a number of interested amici submitted briefs addressing one or more of the six questions set forth by the Board. Yesterday, over a year later, the Board finally issued a decision, which turned not on any one of the six questions set forth but instead on an argument advanced by Northwestern and several of its supporting amici: namely that the Board should decline jurisdiction over college football generally because to do otherwise would not effectuate the purposes of the Act. In particular, the Board found that because of the nature of college athletics, and the structure of college football, a finding that student athletes are employees would not promote the stability of labor relations. The Board reasoned that asserting jurisdiction on a team-by-team basis would cause chaos, noting that most professional sports leagues have league-wide bargaining units. Further, because the vast majority of NCAA members are state-run institutions, the Board could not assert jurisdiction over them even if it wanted to because the NLRA excludes states and its subdivisions from the definition of “employer.” Therefore, asserting jurisdiction under these circumstances would not promote uniform and stable labor relations.
The unanimous decision is a victory for Northwestern University and college sports more generally. However, the Board made clear that its decision did not foreclose a future effort to unionize under different circumstances. For example, the Board found that college athletics resembles professional sports in a number of ways: individual schools receive substantial revenue for staging sporting events, and the schools have banded together to form the NCCA, which the Board compared to “other sports leagues,” to enforce rules and standards of competition. In its closing paragraphs, the Board made clear that its decision may be different if all scholarship football players, or at least those at private colleges and universities, petitioned to form a union. Ramogi Huma, the founder of CAPA, noted the door remains open, and stressed that he and other former college athletes would continue their push for increased rights and benefits for student athletes. But for now, Northwestern and other NCAA members across the country have avoided a decision which would have fundamentally changed collegiate athletics.