NLRB decision a total loss for football player-unionization effort

Buried on Page 23 of Northwestern University's final brief filed with the National Labor Relations Board was the idea that the nation's top labor authority should refuse to become involved in college athletics and should not even consider whether Wildcat football players could form a union.

It seemed almost an afterthought, since hundreds of pages of witness testimony and legal arguments had already been filed with the board. Yet lead attorney Joseph Tilson of the law firm Cozen O'Connor suggested the NLRB should rely on a rarely used labor law and decline to "assert jurisdiction." In this case, declining jurisdiction would mean that the board would choose not to enter into the world of college sports at all, refusing to make any decision on the case.

On Monday, the board adopted Tilson's suggestion and ruled that its stepping into college sports would "not promote labor stability" and would instead disrupt the structures of the NCAA and the FBS, although only 17 private universities in the combined total of 125 schools would be subject to NLRB rulings.

The decision was the last thing the Northwestern players and College Athletes Players Association (CAPA) wanted to hear. It means the effort to unionize college athletics is all but dead.

Although the board in its seven-page opinion noted that it was not ruling on the question of whether football players were employees or students, the reasoning of the opinion will make it difficult, if not impossible, for any group of athletes at any university to form a union. Under the board's reasoning, a union could be formed only if it included all players in a conference, a highly unlikely scenario. In the Big Ten conference, for example, state laws in Ohio, Wisconsin and Indiana make a players' union impossible.

The board explained in detail that allowing a single school like Northwestern to form a union would have "ramifications" for the other 13 schools in the Big Ten, and that under varying and conflicting state labor laws, it would be impossible for teams in any conference to form a league-wide union such as those seen in professional sports.

The "nature of sports leagues" and the "composition of the FBS," with 108 state universities not governed by NLRB rulings, according to the board decision, mean that a single union in a single school "would not promote labor stability."

The board noted that it had "no analytical framework," no "explicit Congressional direction" and no "controlling precedent" with which to make a decision in what it viewed as a "unique and unprecedented" situation. Although many labor experts and law professors expected the board to rely on previous cases involving graduate assistants employed at universities, the board ruled that these employees were wholly different from football players and that such precedents did not apply.

Instead of allowing a union that would bargain over wages and working conditions, the board deferred to the governing structures of college sports already established by the NCAA and its conferences.

If CAPA or some of the Northwestern players wish to appeal the ruling, there is a narrow avenue of appeal. It is, however, unlikely to succeed.

Under a 1958 U.S. Supreme Court decision known as Leedom v. Kyne, an appeal to federal district court is theoretically possible. But to succeed in this avenue of appeal, the players must show that the NLRB exceeded its jurisdiction. That will be a very difficult argument to make considering the board expressly refused to exercise any jurisdiction.

The NLRB has previously declined jurisdiction in attempts that sought to organize workers at dog tracks and horse-racing tracks, but the ruling on Monday was a surprise. Since the decision in March 2014 by the regional director of the NLRB in Chicago, Peter Sung Ohr, there have been numerous conferences of lawyers and law professors that addressed the issues raised by the Northwestern players. I participated in three of these conferences. Not once did any participant in the conferences suggest that the board would decline jurisdiction.

Northwestern attorney Joe Tilson probably didn't hold out much hope for that result, either: He never raised the issue in two weeks of trial or in three earlier briefs filed with the board. He got a nice surprise on Monday.