The question at the heart of the debate remains unanswered.
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The National Labor Relations Board dismissed a ruling earlier today that had allowed Northwestern University’s football team to form a union. Northwestern is a private school.
Aim higher.
But now that the National Labor Relations Board has decided not to assert its jurisdiction in the players’ request for recognition as a union, it feels like naivety.
According to John Marshall Law School Professor Gerald Berendt, many questions remain. Warren Zola, who teaches sports law at Boston College, thinks that’s a problem that will need to be solved eventually.
Like a microcosm of the institution it was asked to make a decision on, the NLRB’s seven-page explanation was filled with contradicting notions and paradoxes.
Both Fitzgerald and Phillips released statements through Northwestern.
The board cited the unique nature of college sports in saying it would foster instability to permit Northwestern football players to form a union while players elsewhere in the National Collegiate Athletic Association are not. He declined to go into specifics.
At first glance, the lack of a decision that led to the dismissal of the Northwestern football players’ union petition could be seen as a total and utter victory for the NCAA and its burning desire to maintain the status quo.
In March 2014, NLRB’s Region 13 regional director Peter Sung Ohr ruled that, under Section 2(3) of the National Labor Relations Act (NLRA), scholarship athletes are considered university employees who are eligible to form a union.
The board noted that it had “no analytical framework”, no “explicit Congressional direction”, and no “controlling precedent” with which to make a decision in what it viewed as a “unique and unprecedented” situation. The New York Times (opinion page) even did it, in 2011! “There was a lot of congressional heat put on the NLRB on this”. For example, the Pac-12 is spending $3.5 million per year to conduct research on head trauma, mental illness and other health and safety-related issues. It also acknowledged not having jurisdiction over state schools, which constitute more than 85% of FBS teams. In addition, every school in the Big Ten, except Northwestern, is a state-run institution. The decision torpedoes what experts saw as one of the best chances NCAA athletes had to draw compensation from the multi-billion-dollar system that prohibits wages for players. Additionally, to the board’s claim that having one unionized team would create a competitive imbalance, there’s no reason to believe that’s true, especially (but not necessarily) if Northwestern’s unionization encourages other teams to follow suit. Northwestern was never the worst place to play college football, and was already offering some of the benefits that other schools had to be dragged kicking and screaming into giving their players. Not surprisingly, lawyers for the school and the NCAA filed an appeal shortly after the ruling. What should be a fundamental right for any 18-year-old eyeing their future is now just that in the Big Ten, which voted last October to formalize the practice conference-wide. It could result in an open market for college athletes.
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In a statement Monday, chief legal officer Donald Remy pointed out numerous ways the NCAA has helped athletes including scholarships, free education for former players and meals.
