Today, the National Labor Relations Board (“the Board”) issued a unanimous decision dismissing the election petition filed by scholarship football players at Northwestern University. The Board punted on the issue of whether these players are “employees” under the NLRA, and instead exercised its discretion not to assert jurisdiction.
Given the unique nature and structure of NCAA Division I Football, the Board concluded that asserting jurisdiction in this case would not “promote stability in labor relations.” First, unlike professional sports such the NFL or MLB, the vast majority of Division I schools are public institutions, which are not subject to the Board’s jurisdiction. In fact, because all of the other schools in the Big10 are public institutions, the Board could not assert jurisdiction over any of Northwestern’s competitors. Second, the Board noted that both the NCAA and individual conferences exercise considerable control over individual teams, so asserting jurisdiction over a single team would not promote stability in labor relations across the league. Indeed, the Board noted that “all previous Board cases concerning professional sports involve league-wide bargaining units.”
In the end, the Board took care to limit the effect of this decision just to the case at hand. They made clear that other athletic personnel (e.g., coaches, groundkeepers, etc.) may be subject to the Board’s jurisdiction and could seek to unionize. Northwestern’s players, however, have been stopped short of the goal line.
While nothing prevents the Board from changing its mind in the future, today’s decision likely means that the Board will likely decline to exercise jurisdiction over future election petitions filed by college athletes. As such, those players will have to go back to the huddle and come up with a different game plan to seek greater control over their “work” environment.