In a ruling on August 17, 2015, the National Labor Relations Board (NLRB) decided that it should not exercise jurisdiction over the unionization attempts by Northwestern football players.  The NLRB “punted” the issue and declined to decide whether the football players were employees permitted to unionize under the National Labor Relations Act.

So, why did the NLRB decline jurisdiction?  Because, it says, asserting jurisdiction only over the Northwestern football players would not “promote stability in labor relations.”  Here’s some of the reasons why:

  • The NLRB noted that it has jurisdiction only over private universities, which make up only 17 of the approximately 125 universities in Division I Football Bowl Subdivision (FBS).
  • The NLRB found that the history of oversight in bargaining in analogous professional sports has never involved recognition of a unit comprised of only one sports team;
    • Rather administrative oversight of bargaining has included the entire sports league;
    • Here, however, the NLRB is being asked to assert jurisdiction over only one team and the players of other competing teams would not be represented or are entirely outside the NLRB’s jurisdiction.
  • Since the Northwestern football program faces regulation not simply from the school but also from the Big Ten and the NCAA, and since Northwestern is the only private university in the Big Ten and only one of 17 private universities in the FBS of the NCAA Division I, exercising jurisdiction would not promote the stability of labor relations.

So, what does this mean for employers?

  • Candidly, not much.
  • Employers may take some comfort that the NLRB in this instance likely got it right.
  • The ruling may give some fodder to private employers battling “micro-units” as the decision does have some helpful language in that regard.
  • Look for continued effort by the union to push at the conference and NCAA level for more oversight on behalf of the players and their desire to be paid a stipend or for the use of their images, and to discuss other health and welfare issues.