Faced with a decision about whether Northwestern University’s football team players could vote on whether they wanted a union, the five members of the National Labor Relations Board borrowed a tactic from the petitioning players’ game: they punted.
They claimed that they could have decided, as the regional director did in March 2014, that the players were employees of the university. After all, they worked up to 60 hours a week practicing and playing football in return for a scholarship.
But the NLRB declined to rule one way or the other in its August 17 decision. Its members wrote that they could have asserted jurisdiction over labor relations in the Northwestern athletics department, but they chose not to.
“The one thing we know for sure is that they could have said the players didn’t meet the standard of being employees, but they didn’t,” says Tim Waters, political director of the United Steelworkers, which has covered much of the organizing and legal costs of the union set up early in 2014 by the College Athletes Players Association, a 15-year old advocacy group. “It looks to me like the simple answer is they just wanted to get rid of it.”
As a result of this non-decision, however, Northwestern football players will not be able to vote on forming a union. The decision will also complicate, though not definitively halt, CAPA’s organizing. (Officially, no union organizing is currently underway, but athletes and their supporters continue a lower-profile campaign for better safety protection and other improved conditions for athletes.) But it should not hinder other efforts to organize student and other campus workers.
The Board chose not to act in this case, the decision states, “because of the nature of the sports leagues (namely the control exercised by the leagues [including the NCAA] 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.” State legislatures and agencies generally have jurisdiction over labor relations at public universities, and both laws and practices could vary among states.
Because of this complex structure, the Board concluded, “it would not promote stability in labor relations to assert jurisdiction in this case.”
Stability of industrial relations may indeed be one of the national labor law goals, but the primary public policy aim is to protect worker rights and to promote collective bargaining. Also, historically, the Board has identified collective bargaining as the means to create more stable labor relations.
College athletics could be complicated to govern with its several layers of control and multiplicity of legal jurisdictions. But the Board does an injustice to its primary legal mandate when it accepts stability gained by suppressing worker rights.
Beyond the issues raised in this organizing drive, the structure of college athletics could still be vulnerable to various challenges. First, several lawsuits are charging the leagues with violating anti-trust laws or illegally exploiting players’ images for the profit of the leagues and schools.
Also, the players could make a strong argument that the NCAA and similar organizations act as joint employers with the universities. The Board could devise a mechanism for federal (or a joint state and federal) method for union recognition. Lawyers for the union considered making the legal argument on joint employer responsibility, which the NLRB now is taking more seriously (such as in a case involving McDonald’s corporation and its franchise owners), but they decided against pursuing the strategy at this time.
Most of all, if sports fans openly support the players, who are seeking much-needed protection of their health and the same rights at work promised to all employees, public opinion could become one of the strongest forces on behalf of college athletic employees having a voice on their job.
David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy.