Why the NLRB Ruled That College Football Players Can’t Unionize

By Nelson Cary and George Stevens

This week, the long-running saga of whether NCAA Division I football players are employees under the National Labor Relations Act came to an end — at least temporarily.

The National Labor Relations Board unanimously declined to exercise jurisdiction over Northwestern University’s scholarship football players and dismissed the union election petition.

In January 2014, Northwestern University’s scholarship football players filed a petition with the NLRB seeking representation for the purpose of collective bargaining.  They argued that they were employees.

In March 2014, an NLRB regional director in Chicago agreed and ordered that an election be held, sending shockwaves through the NCAA football world.  Northwestern requested that the Labor Board review the potentially massive decision, and the NLRB has been considering the matter for more than a year.

No decision on whether college players are employees

The NLRB’s decision did not address the central question of whether Northwestern’s players — or any other group of NCAA athletes, for that matter — are employees. Instead, it decided that asserting jurisdiction over the issue would not effectuate the policy of the NLRA, which is to promote stability in labor relations.

The NLRB cited the high degree of control the NCAA exercises over how the scholarship athletes practice and play.  It also noted that the vast majority of NCAA, and Big Ten, member institutions are public universities over which the NLRB cannot assert jurisdiction.

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While this is a win for Northwestern and, by extension, the NCAA, it may not have settled the issue over the longer term.

Arguments about whether NCAA Division I student-athletes are employees, and therefore entitled to compensation, continue to swirl. With the NLRB not only sidestepping that question, but also limiting its decision to the Northwestern petition, labor professionals may not have heard the last of this issue.

For example, the NLRB explicitly noted that it was not addressing what it might do with a petition for all scholarship football players (or at least those at all private universities) in the NCAA Division I Football Bowl Subdivision.

This was originally published on the Vorys on Labor blog.

Nelson D. Cary is a partner in the Columbus office of the law firm Vorys, Sater, Seymour and Pease LLP (VORYS) and is a member of the labor and employment group. He represents management in a broad range of labor and employment matters, including compliance with and defending employers in litigation arising out of the Family and Medical Leave Act, Americans with Disabilities Act, Title VII, Age Discrimination in Employment Act, Fair Labor Standards Act, and similar state laws. He also advises employers on union elections and unfair labor practice proceedings before the National Labor Relations Board and the Ohio State Employment Relations Board, negotiates union contracts, and defends labor contract arbitration proceedings. Contact him at ndcary@vorys.com.


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