Here’s the Road Ahead for College Athletes After Union Setback

Back in April of 2014, the National Labor Relations Board (NLRB) in D.C. granted Northwestern University’s request to review what seemed like a landmark decision in college athletics.

A regional NLRB director ruled that Northwestern football players were indeed employees under federal labor law, and thus had a right to unionize and fight for better health protections, compensation and other benefits at the collective bargaining table.

For a good 16 months now, all stakeholders in college athletics, from players to school and NCAA administrators, to coaches and students and alumni, waited for the NLRB to make a call on Northwestern.

Many labor scholars expected a win for college athletes. They figured that the five-member panel in D.C. would uphold the decision in Chicago, which seemed entirely logical: since Northwestern players dedicated some 50 to 60 hours of their weeks to football, an activity entirely separate from studying in class, sports is indeed a full-time job.

What almost nobody expected: the NLRB spending 16 months to decide not to make a decision.

But that’s exactly what the agency did. Call it a punt, call it an abdication of responsibilities, call it cowardly. On Monday, the NLRB declined to assert jurisdiction in the Northwestern case, simultaneously refusing to address the central question — are big-time college athletes, who in many cases generate millions of dollars for their schools, employees? — squashing the Northwestern union effort, and explicitly leaving the door for other union challenges down the road.

“No legal scholars I’ve talked to over all these months predicted this outcome,” says Warren Zola, sports law expert at Boston College’s Carroll School of Management. “It took them over 500 days to reach a conclusion they could have reached in hours. It seemed like they shirked their duties.”

Definitely call it a setback for college athletes, and a strange one at that. The NLRB concluded that making a decision in this case would “not serve to promote stability in labor relations.” But doesn’t the NLRB exist because labor relations are inherently unstable, since employers and employees have such competing interests?

The NLRB decided to pass on this case in large part because of the structure of college athletics. Northwestern University may be a private institution — and thus under NLRB jurisdiction, which oversees the private sector. But all of Northwestern’s “primary competitors” in the Big 10 conference are public institutions, and thus subject to state law.

In fact, of the roughly 125 institutions that compete in top-tier Division 1 football, all but 17 are public schools. Since the NRLB can’t regulate all schools, it won’t regulate Northwestern.

William Gould, emeritus professor at Stanford Law School who chaired the NLRB from 1994 to 1998, isn’t buying this conclusion. “The point about collective bargaining is that it enhances stability,” says Gould. “This decision assumes immaturity on the part of all parties.”

So where do college athletes go from here? While Ramogi Huma, president of the College Athletes Players Association–which organized the Northwestern union efforts–remains surprised and disappointed in the NLRB decision, he doesn’t plan to stop fighting. “There’s no reason to give up,” he insists. “This decision does not set a precedent. We still have an opportunity to unionize college sports.”

Huma won’t specify where and when his next unionization push will take place, because he fears that coaches and administrators will urge players not to organize; Northwestern football coach Pat Fitzgerald, for example, publicly said it wasn’t in his players’ interest to unionize. “Anything we telegraph will be crushed,” Huma says.

The NLRB non-decision will make private university unions more difficult for athletes, but not impossible. The NLRB, for example, noted that “in all our cases involving professional sports, the Board was able to regulate all, or at least most, of the teams in the relevant league or association.” So athletes from an entire conference of private schools within the NLRB’s jurisdiction — say, men’s basketball players from the Big East, which includes strong revenue-producing programs like Georgetown and Villanova — would seem to have a stronger case.

Also, some states laws offer potential openings for public school unions. In fact, Huma might want to visit UCLA, his alma mater, where he played football in the 1990s. In California, the student employee test asks if the services rendered are related to the student’s educational objectives. Since scholarship football players aren’t spending those 50 extra hours studying, athletes at UCLA and other California state schools could lay claim to employee status.

Still, states like Ohio and Michigan have already preemptively struck down college athlete unions in the wake of Northwestern’s effort, by passing statutes specifying that scholarship athletes are not employees. Other states limit, or prohibit, public employees from unionizing altogether: college athletes at the University of Alabama, for example, have no constitutional or statutory right to collectively bargain. So a mass push to unionize athletes at public schools isn’t entirely practical.

Another avenue for athletes is Congress. Federal lawmakers can lift the compensation and benefits restrictions that the NCAA places on its member schools. But Congress is unlikely to rewrite NCAA regulations anytime soon, especially after six Republican lawmakers who help oversee the National Labor Relations Board submitted a brief in the Northwestern case knocking the regional director’s decision.

“Scholarship football players are not and should not be treated … as employees,” wrote the lawmakers, which included Rep. John Kine (Minn.), chair of the House Committee on Education and the Workforce, and Sen. Lamar Alexander (Tenn.), chair of the Senate Committee on Health, Education, Labor and Pensions.

So the best bet for athletes are the courts. “The action is going to shift to anti-trust,” says Gould, the law professor. Players have already achieved a victory in the O’Bannon case, which permits schools to cover the full cost of attendance for men’s basketball and football players and to set aside deferred payments, capped at no less than $5,000 per year per player. The NCAA is appealing that case.

Even more promising for college athletes — and scary for schools invested in the status quo — is a class-action anti-trust claim, brought forward by famed sports labor attorney Jeffrey Kessler, that seeks to lift all NCAA restrictions on compensation.

“The NLRB decision in the Northwestern case just underscores how important the anti-trust cases are for the players in basketball and football in Division 1,” Kessler says. “Because the anti-trust laws apply fully to all the schools, whether or not they are public institutions. The anti-trust cases are really at the moment the only legal road that players have to try to vindicate their rights. If our case is successful, it will let a market develop where schools or the conferences themselves decide how they want to do this. And we think they’ll make good decisions.”

A hearing for class certification in Kessler’s case is set for October 1. He hopes the case is ready to go to trial by the end of 2016.

“The Northwestern decision is a major setback for college athletes,” says Gould. “But this is just the beginning of this sort of litigation.” College sports is still shifting. Despite the labor board’s pass.