With the college football season about to get underway, on August 17, the National Labor Relations Board (NLRB) issued its highly-anticipated decision involving Northwestern University’s scholarship football players’ attempt to unionize.

As background, the National Labor Relations Act guarantees the right to organize and join labor unions. This right, however, applies only to employees employed by private sector employers. Last year, an NLRB Regional Director concluded that Northwestern’s scholarship football players are more employees than students, and held that, because Northwestern is a private university, those players have the right to seek union representation.

Northwestern sought review from the NLRB in Washington, D.C. The NCAA, the Big Ten, and a number of other prominent universities joined in Northwestern’s challenge to the conclusion that scholarship athletes are employees. They also raised a number of a practical and policy-based arguments why allowing student-athletes to be represented by labor unions would adversely impact the nature of college athletics.

Those arguments appeared to be carry the day, as rather than deciding whether scholarship athletes at private universities are in fact employees, and thus have the right to organize, the NLRB instead declined jurisdiction over the case, finding that it “would not effectuate the purposes” of the NLRA to assert jurisdiction. The NLRB specifically noted its decision was “primarily premised on a finding that, 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 in this case.”

The NLRB’s decision is not subject to appeal, and thus ends this case, although the Board’s decision left open the possibility that it could reexamine the issue again in the future “if the circumstances of Northwestern’s players or FBS football change such that the underpinnings of our conclusions regarding jurisdiction warrant reassessment.”