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Ruling to allow college athletes to unionize is thrown out

 
Northwestern players said with the increasing demands on their time and the massive amounts of money they were generating, they should have a greater say in issues like health and safety.
Northwestern players said with the increasing demands on their time and the massive amounts of money they were generating, they should have a greater say in issues like health and safety.
Published Aug. 18, 2015

The National Labor Relations Board on Monday dismissed a petition by Northwestern football players who were seeking to unionize, effectively denying their claim that they are university employees and should be allowed to collectively bargain.

In a unanimous decision that was a clear victory for the college sports establishment, the five-member board declined to exert its jurisdiction in the case and preserved, for now, one of the NCAA's core principles: that college athletes are primarily students.

The board did not rule directly on the central question in the case: whether the players, who spend long hours on football and help generate millions of dollars for Northwestern, are university employees. Instead, it found that the novelty of the petition and its potentially wide-ranging effects on college sports would not have promoted "stability in labor relations."

"This is not a loss, but it is a loss of time," Ramogi Huma, president of the College Athletes Players Association, a United Steelworkers-supported group that sought to represent the players, said in a statement. "It delays players securing the leverage they need to protect themselves from traumatic brain injury, sports-related medical expenses, and other gaps in protections."

Citing competitive balance and the potential effect on NCAA rules, the board made clear it harbored many reservations about the ramifications of granting college athletes, much less a single team, collective bargaining rights.

"The board has never before been asked to assert jurisdiction in a case involving college football players, or college athletes of any kind," the seven-page decision read. "Even if scholarship players were regarded as analogous to players for professional sports teams who are considered employees for purposes of collective bargaining, such bargaining has never involved a bargaining unit consisting of a single team's players."

Northwestern, which strongly urged its players to vote down the union ahead of last year's secret ballot election, released a statement from spokesman Alan Cubbage.

"We believe strongly that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes," it read. "We are pleased that the NLRB has agreed with the university's position."

Across college sports, many others lauded the ruling. The commissioners of 31 of the largest conferences issued a statement calling the decision "the right call," and Donald Remy, the NCAA's chief legal officer, said it would allow the association "to continue to make progress for the college athlete without risking the instability to college sports that the NLRB recognized might occur under the labor petition."

The decision is a major blow to the union movement in college sports, which was led by former Northwestern quarterback Kain Colter. "Disappointed by the NLRB ruling. But can't deny the positive changes that were brought about by athletes standing up. Proud of those guys," Colter wrote on Twitter.

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The College Athletes Players Association could sue to force the National Labor Relations Board to exert jurisdiction in the case, but the little-used option would be akin to a Hail Mary pass.

Huma would not rule out future unionization attempts at other colleges.

"It's notable they didn't rule that players aren't employees," he said. "The door is still open."

Indeed, the board wrote that its decision applied only to the Northwestern case — there was no precedent established for graduate teaching assistants or student janitors — and also left open the possibility that it could re-examine the issue if college athletes bring a similar case in the future.

"There may have been some sympathy for the players' argument," said Wilma Liebman, a former chairwoman of the National Labor Relations Board. "But siding with the players may have seemed like too great a leap, so this is a compromise."

Chief among the board's reasons for declining to consider the case were the complexities of an NCAA in which one team might be unionized while others were not, and whether a union would negotiate terms that conflicted with the association's rules.

The board, which has jurisdiction only over the private sector, was also reluctant to wade into territory that could have raised implications for public universities. The vast majority of top-level college football programs are from public colleges, and Northwestern is the only private institution in the 14-member Big Ten.

"This decision is politically smart," said Joe Ambash, a lawyer who represented Brown University in front of the board when its graduate teaching students sought to unionize. "The board would have faced a firestorm of protest if they made college football players employees."

In announcing the union push last year, Colter had hoped to reset the balance of power between players, their universities and the NCAA. He argued that with all the time demands on players and the ever-increasing money flowing through college sports, players deserved a greater say in issues such as safety and long-term health care.

Peter Ohr, a regional director of the National Labor Relations Board in Chicago, ruled last year that players on scholarship were employees based on the hours they spent each week on football, the strict rules set by coaches and the financial aid they received as compensation. Northwestern players — 76 were eligible — voted whether to certify the union in April 2014, but the votes were impounded pending a ruling by the full board. Now that the board has ruled in favor of Northwestern, the ballots will not be counted.

In the aftermath of Ohr's ruling, two states — Michigan and Ohio — pushed laws that banned college athletes from unionizing.

Still, much has changed in college sports since Colter and Huma announced the union petition. The NCAA changed its governance structure to allow its wealthiest conferences to make some of their own rules, and those leagues, in turn, increased the value of a scholarship by a few thousand dollars and now guarantee them for four years.

A number of conferences and individual colleges have pledged to offer more comprehensive health care. Last summer a federal judge found the NCAA violated antitrust laws by not allowing players to profit from their names (the ruling was stayed last month by an appellate court).

"The Northwestern players' courage has done a lot to change the game," Huma said. "They showed how much power the players have when they assert their rights under the law."