After holding the potential “employee” status of Northwestern University’s grant-in-aid scholarship football players in abeyance for 16 months, the National Labor Relations Board’s decision not to assert jurisdiction left the parties still waiting for a “real” decision from the Board on the merits of whether college football players someday may be considered “employees” who can unionize under the National Labor Relations Act. The Board dismissed the representation petition filed by the College Athletes Players Association and declared “it would not promote stability in labor relations” if the football players from only one privately operated school had the ability to unionize, while many others who played for state-run schools that were not subject to NLRB jurisdiction, did not.

The ballots cast by the Northwestern football players and impounded by the Board will never be opened and counted to determine if the players had voted for or against union representation.

The Board’s refusal to act on the legal issue placed before it successfully avoided a formal answer to the question of whether the scholarship athletes are employees capable of forming a union that may be certified under federal labor law. The Board’s decision creates a roadblock on the path toward student-athlete unionization but it may not be permanent.

Does the student-athlete effort to unionize end at Northwestern?

According to Ramogi Huma, lead organizer of the Northwestern effort and President of the College Athletes Players Association, the effort to unionize student-athletes will continue. Huma stated, “This decision does not set a precedent. We still have an opportunity to unionize college sports.” Huma’s comments echo the language from the Board’s unanimous opinion.

The Board acknowledged its decision would not preclude a reconsideration of the issue regarding student-athletes as statutory employees.

Eschewing specific guidance or examples, the Board asserted that changed circumstances relating to Northwestern’s players or FBS (Football Bowl Subdivision) football could result in future action. It also contrasted Northwestern with its prior decisions in cases involving professional sports, where it was “able to regulate all, or at least most, of the teams in the relevant league or association.” The Board stated that it would be unable to promote stability in labor relations in a league or association in which only one team was attempting to organize and seek Board involvement. Clearly, the Board’s decision left open the distinct possibility of future student-athlete representation petitions being filed on behalf of all FBS football players or those playing at private colleges and universities.

Commentators have suggested that more positive results for student-athletes may be achieved through specific litigation in the federal courts. As former Board Chairman William Gould asserted when asked about the Board’s decision,

“The action is going to shift to anti-trust.”

He refers to a pending class action anti-trust claim that seeks injunctive relief to end all NCAA restrictions on student-athlete compensation. Attorney Jeffrey Kessler, who filed the claim said, “The anti-trust cases are really…the only legal road that players have to try to vindicate their rights.”

Gould acknowledged the impediment created by the Board, concluding, “The Northwestern decision is a major setback for college athletes. But this is just the beginning of this sort of litigation.”