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By:  Dan Cohen – 8/22/15

Earlier this week, the NLRB unanimously ruled that Northwestern football players could not form a union. The ruling overturns the 2014 decision of the NLRB Regional Director in Chicago that college football players at Northwestern were employees of the University, who could be represented by a union (See e.g. 3/27/14 Post, “A New Concept of Offensive Linemen…Ready to Line Up Against University Administration”). The NLRB did not base its ruling on the central legal question, “whether student athletes were employees of the university.”

Instead, the Board’s decision recognized that since it did not have jurisdiction over state-run colleges and universities, which make up 108 of the roughly 125 teams, and because Northwestern was the only school in the Big 10 that was not state-run, “asserting jurisdiction over a single team would not promote stability in labor relations.” Had the NLRB exercised jurisdiction over the Northwestern football players, that decision would have affected all private schools with football programs in the NCAA’s top tier, including Baylor, Boston College, BYU, Duke, Miami, Northwestern, Notre Dame, Rice, SMU, Stanford, Syracuse, TCU, Tulane, Tulsa, USC, Vanderbilt and Wake Forest.

What we won’t know now as a result of this decision is how the football players voted since their ballots were sealed when Northwestern appealed the Regional Director’s decision allowing the vote to go forward. Frankly, with Northwestern Coach Pat Fitzgerald lobbying against unionization and players publicly announcing they would vote no, a vote in favor of unionization was far from certain.

The NLRB has essentially punted on the issue (no pun intended). However, some of the concerns raised by those pushing to unionize the student-athletes at Northwestern have been taken up elsewhere, and some reform has already begun. For example, in January, the schools that make up the NCAA’s five biggest conferences voted to allow college athletes to be paid stipends that cover more than tuition, room and board, and meals. The NCAA will reportedly distribute almost $19 million to the nearly 350 Division I schools for that purpose. The Big Ten and Pacific-12 conferences now guarantee four-year scholarships, and the Pac-12 guarantees medical coverage for athletes injured during competition for up to four years after graduation.

The wake-up call to the NCAA might just be the legacy of the failed attempt to unionize the Northwestern football team. While there is still more to do, I think reform is the a better answer then turning the game upside down by having some players unionized while the vast majority of others remain union free.