Only a few years ago, the prospect of intercollegiate athletes forming a union would have seemed improbable, indeed bizarre. But in March of last year, a regional official at the National Labor Relations Board (NLRB) ruled that football players at Northwestern University were “employees” of the institution and were thus entitled to organize. The higher education community strongly supported Northwestern’s appeal of the examiner’s decision favoring the players, and in mid-August of this year, the full board unanimously reversed the ruling.
AGB joined four other presidential groups in filing an amicus curiae brief that stressed the concern that treating student athletes as employees would damage basic academic precepts. AGB senior fellow and First Amendment scholar Robert M. O’Neil, former president of the University of Virginia and former director of the Thomas Jefferson Center for the Protection of Free Expression, analyzes the issue.
What is the legal import of the NLRB’s reversal?
Under federal labor law, the board could theoretically have ruled (as did the regional examiner) that student athletes were “employees” and thus could form and join a union. But even a newly aggressive (and Democratic-controlled) NLRB would have been unlikely to reach that far—even at a time when the board has actively enhanced the rights and interests of part-time, adjunct, and contingent faculty, as well as industrial workers. Thus, even a usually sympathetic agency in this case firmly rebuffed the Northwestern football players’ quest for recognition.
What was the Labor Board’s rationale for rejecting unionization?
In its ruling, the NLRB explained that “asserting jurisdiction would not promote labor stability due to the nature and structure of NCAA Division I Football Bowl Subdivision (FBS).” Noting that the vast majority of top-level football programs exist at public universities—as is the case at the other regional or Big Ten campuses—the board observed that “asserting jurisdiction over a single team would not promote stability in labor relations across the league.” Meanwhile, higher education leaders have stressed nobler values such as reaffirming the vital nexus between student athletes and the classroom, as well as between professors and students in all facets of campus life.
Could the issue be reopened at a later time?
While the NLRB made clear that its ruling was “narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future,” it seems most unlikely that a different group of student athletes would fare better than did their counterparts in Evanston. That would be true even if two currently pending federal appeals court challenges to the NCAA regulations on benefits and perquisites for student athletes were affirmed in a manner that would effect major change in the monetary aspects of the player-institution dynamic.
How does the situation differ at state-supported institutions?
The legal framework is totally different in the public sector. Under federal labor law, each state sets its own policies for public-employee bargaining. In some cases, especially in the football-rich Southeast, that includes so-called “right to work” laws which would categorically preclude not only unionization of student athletes, but collective bargaining for virtually all government workers. Clearly, the dominance of the public sector was a major consideration in the recent NLRB ruling.
How important was the Northwestern ruling in the broader higher education context?
It would be hard to overstate the significance of the NLRB’s rejection of the Northwestern players’ quest for recognition. As AGB, the American Council on Education, and other groups argued in their brief before the board, viewing student athletes as employees would “undermine the relationship between students and their coaches and teachers. And it would entangle the board and courts in matters traditionally left to educators and would trench on academic freedom and disserve students.” That firm declaration also reflects AGB’s continuing attention to the vital role of shared governance in the increasingly complex world of intercollegiate athletics.