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U.S. National Labor Relations Board rejects student athlete unionization

Football ref
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In March of last year, a decision by the Chicago regional office of the National Labor Relations Board (NLRB), an independent U.S. federal agency charged with protecting the rights of private sector employees to bargain collectively with employers over wages and working conditions, raised hopes that students who receive financial aid for playing on a private university’s intercollegiate football team may win the right to form unions. Football players at Northwestern University in Evanston, Illinois, had asked the NLRB to declare them eligible to unionize, and at the time some observers, Science Careers included, suggested that a decision permitting the athletes to unionize could also apply to graduate students who receive money to teach classes or run experiments. But in a unanimous decision announced on 17 August, the full NLRB dashed the hopes of the athletes—and of those who hoped the case would set a precedent for graduate teaching and research assistants in private schools—at least for now.

On procedural grounds, the full NLRB decision sidestepped the central question of whether the athletes are mainly students, who, under the NLRB’s 2004 Brown University decision, would therefore not be eligible to form unions, or mainly employees who would thus be eligible. The NLRB instead chose not to assert jurisdiction over the Northwestern case—essentially deciding not to decide—because doing so could go against its mission of promoting labor stability across the sector of college sports, given the nature and structure of the National Collegiate Athletic Association (NCAA) Division I Football Bowl Subdivision (FBS), according to an NLRB statement. “By statute the Board does not have jurisdiction over state-run colleges and universities, which constitute 108 of the roughly 125 FBS teams,” but only over private entities, the statement explains. “In addition, every school in the Big Ten [Conference], except Northwestern, is a state-run institution. As the NCAA and conference maintain substantial control over individual teams, the Board held that asserting jurisdiction over a single team would not promote stability in labor relations across the league.”

[T]his may be just a time-out in the drive for college athlete unionization—with its potential implications for graduate assistant unionization as well. Or it may really be the final buzzer.

But, the statement adds, “this decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future.” There is no indication, however, of whether the board would actually consider overturning the 2004 Brown University precedent, which arose from a request for unionization rights by graduate student assistants. That decision declared that student employees at private universities are predominantly students rather than employees and thus not eligible to unionize. In contrast, student employees at public institutions are governed not by the federal NLRB but by state labor laws, some of which permit student employee unions. In some states, such as California, graduate student assistants have formed unions that bargain on their behalf.

Legal experts differ on whether reconsideration of the issue in the Northwestern case is likely or even possible. “[T]he traditional union organizing route via the NLRB appears to be a dead end,” according to labor lawyer Seth Borden on the McGuireWoods Labor Relations Today blog. But at the Collegiate and Professional Sports Law Blog, labor lawyer Howard M. Bloom and co-authors are more optimistic. “The current NLRB may yet seek to tackle college and university sports for organized labor. The game is a long way from over,” they write.

So this may be just a timeout in the drive for college athlete unionization—with its potential implications for graduate assistant unionization as well. Or it may really be the final buzzer. Student athletes and graduate assistants at private institutions will just have to wait to find out whether another case may establish a right for them to form labor unions.