Tuesday, August 18, 2015

NLRB, college athletes, and the case that doesn’t really matter

Yesterday, the NLRB closed its book on the attempt of Northwestern University’s scholarship football players to unionize, not with a thud but with a whimper. The NLRB unanimously passed on the issue of whether college athletes are “employees”, and instead held that the NLRB lacked jurisdiction to consider the petition because the inherent nature of college sports is antithetical to the purposes served by the NLRA:

[W]e have determined that, 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. 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.

The Board has never asserted jurisdiction, or even been asked to assert jurisdiction, in a case involving scholarship football players or similarly situated individuals, and … we decline to do so in this case. Processing a petition for the scholarship players at this single institution under the circumstances presented here would not promote stability in labor relations. Moreover, recent changes, as well as calls for additional reforms, suggest that the situation of scholarship players may well change in the near future. For these reasons…, even if the scholarship players were statutory employees (which the Board does not here decide), we have concluded that it will not effectuate the policies of the Act to assert jurisdiction in this case.

What does this case mean? Frankly, very little. It’s a huge story because the implications of an opposite ruling would have irreparably changed the nature of college sports. As it stands, the case maintains the status quo, without ruling on the key issue of private-college-athletes-as-employees. Thus, while this opinion has garnered tons of news coverage (Wall Street Journal, New York Times, ESPN), at the end of the day, its just not that big of a deal.

What’s next on the issue of “employee” at the NLRB? The McDonald’s case, which almost certainly will decide whether a franchisor is a (joint-)employer of its franchisee’s employee, and will likely be (one of the) biggest cases of 2015.

You can download a pdf of the Northwestern University opinion here.