The National Labor Relations Board announced that it will not uphold the lower office ruling that Northwestern players are employees of their school, which obviously means they can’t unionize.
The grounds it chose to stake that position are interesting.
Just as the nature of league sports and the NCAA’s oversight renders individual team bargaining problematic, the way that FBS football itself is structured and the nature of the colleges and universities involved strongly suggest that asserting jurisdiction in this case would not promote stability in labor relations. Despite the similarities between FBS football and professional sports leagues, FBS is also a markedly different type of enterprise. In particular, of the roughly 125 colleges and universities that participate in FBS football, all but 17 are state-run institutions. As a result, the Board cannot assert jurisdiction over the vast majority of FBS teams because they are not operated by “employers” within the meaning of Section 2(2) of the Act.
In other words, the unique nature of college football saved itself here. And so there is an indirect warning from the Board in the event the sport presents itself with a more unified structure in the future.
Further, we are declining jurisdiction only in this case involving the football players at Northwestern University; we therefore do not address what the Board’s approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities).
There is no doubt that this is a big win for the NCAA and schools in the short term. But in the longer term, there are some fascinating tradeoffs they may face, particularly if Kessler prevails in his litigation. That’s a subject we’ll perhaps visit at another time, though. In the meantime, we’ll have to wait and see if Stacey Osburn has any comment.