It’s probably fitting that the National Labor Relations Board punted a case involving a football team. The board overturned a regional director’s ruling that Northwestern’s football team had the right to unionize, but it didn’t do so by weighing the merits of the case. Instead, board members booted this particular political football back to the federal court system and Congress.
Now taking over at its own 20-yard line, the Ninth Circuit Court of Appeals.
It’s tough to blame NLRB members for choosing not to assert jurisdiction in this case. It affected only Northwestern’s football team. And while it may have served as precedent for other FBS football teams at private schools, it would have had no effect on the far larger group of public school football teams, whose organization efforts would be governed by their own state’s laws. “… even if the scholarship players were statutory employees (which, again, is an issue we do not decide), it would not effectuate the policies of the Act to assert jurisdiction,” the board wrote in its decision. “Our decision is 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.”
Make no mistake, this is a victory for the NCAA and the status quo. Had the players been given the right to unionize, schools probably would have had to change NCAA rules to come into compliance with federal labor laws. And then something specific to Northwestern would have affected every other school in at least the FBS and probably in all of Division I. That likely was the reason organizers chose to mount the union fight this way. All it would have taken was one team at one school. But the NLRB did not want to be the body that changed the system completely. Board members seem content to leave that to the judicial and legislative branches.
Despite that, it doesn’t mean the Northwestern players lost. The board acknowledged that another group may try to get college athletes recognized as employees with the right to unionize. When that happens, maybe it will come at the right time for the NLRB to make a determination.
This “right time” probably wouldn’t be until at least after the Ninth Circuit rules on the NCAA’s appeal in O’Bannon v. NCAA or even until Jenkins v. NCAA—the athletes’ nuclear option—works its way through the court system because those cases stand to change the financial relationship between schools and athletes. Jenkins v. NCAA could especially draw more clear lines. Players at high-revenue athletic departments are going to get paid more—they already are thanks to cost of attendance stipends—but it will be a few years before the how and the how much get completely determined.
Ramogi Huma, the college athlete advocate who helped spearhead the unionization effort at Northwestern, said his group expected a ruling Monday. They were shocked that the NLRB did not make a declarative decision. While they were disappointed they didn’t get what they sought, they appreciate that they now have the chance to try again. Huma also pointed out something that doesn’t show up on the zero-sum scoreboard of the ruling. “This hasn’t been in vain—even for the players at Northwestern,” Huma says. “We’ve seen NCAA sports move in ways that [schools] fought for more than a decade.”
Here are some of the demands made by the Northwestern players who signed union cards in 2014:
• Guaranteed coverage for sports-related medical expenses for current and former players.
• Minimizing the risk of sports-related traumatic brain injury. Reduce contact in practices like the NFL and Pop Warner have done, place independent concussion experts on the sidelines, and establish uniform return to play protocols.
• Improving graduation rates. Establish an educational trust fund to help former players complete their degrees and reward those who graduate on time.
• Consistent with evolving NCAA regulations or future legal mandates, increasing athletic scholarships and allowing players to receive compensation for commercial sponsorships.
• Securing due process rights. Players should not be punished simply because they are accused of a rule violation, and any punishments levied should be consistent across campuses.
In May 2014, less than two months after regional director Peter Sung Ohr agreed with the Northwestern players, Pac-12 presidents published a letter supporting the following initiatives:
• Permit institutions to make scholarship awards up to the full cost of attendance.
• Provide reasonable on-going medical or insurance assistance for student-athletes who suffer an incapacitating injury in competition or practice. Continue efforts to reduce the incidence of disabling injury.
• Guarantee scholarships for enough time to complete a bachelor's degree, provided that the student remains in good academic standing.
• Decrease the time demands placed on the student-athlete in-season, and correspondingly enlarge the time available for studies and full engagement in campus life, by doing the following:
a. Prevent the abuse of organized "voluntary" practices to circumvent the limit of 20 hours per week.
b. More realistically assess the time away from campus and other commitments during the season, including travel time.
• Similarly decrease time demands out of season by reducing out-of-season competition and practices, and by considering shorter seasons in specific sports.
• Further strengthen the Academic Progress Rate requirements for post-season play.
• Address the "one and done" phenomenon in men's basketball. If the National Basketball Association and its Players Association are unable to agree on raising the age limit for players, consider restoring the freshman ineligibility rule in men's basketball.
• Provide student-athletes a meaningful role in governance at the conference and NCAA levels.
• Adjust existing restrictions so that student-athletes preparing for the next stage in their careers are not unnecessarily deprived of the advice and counsel of agents and other competent professionals, but without professionalizing intercollegiate athletics.
• Liberalize the current rules limiting the ability of student-athletes to transfer between institutions.
Big Ten schools published similar lists last year as well, and the leaders of the ACC, Big 12 and SEC have all gotten behind more money and better continuing medical care for athletes. When those conferences were granted autonomous powers by the rest of the members of Division I, they changed their rules to allow those policies to go into effect. They did not do all of this out of the kindness of their hearts. They did this because they were afraid a court or a regulatory agency was going to make them do it—and in a way far less palatable to them. The similarity in those two lists is the real victory in the Northwestern unionization effort.
Huma worries because those are only policies. They’re held in place by the whims of the people in charge. After all, NCAA schools guaranteed four-year scholarships until they changed the rules to make them one-year, renewable deals. They didn’t begin allowing schools to offer four-year deals again until 2012, after lawsuits and significant public pressure caused the schools to cave. Huma would like to see these policies backed up by federal labor law.
But that isn’t going to happen now. And it may not ever happen.
That doesn’t mean the athletes should stop using whatever leverage they can to force the system to change to their benefit. These new policies exist because athletes scared schools into making them. The athletes are not powerless. This episode proved that—even if the Northwestern football team can’t rent out its own union hall.