Asked and Answered . . .

Charles Oxender on college athletes and unionization

By Steve Thorpe
Legal News

The National Labor Relations Board recently dismissed a petition by Northwestern University football players seeking to unionize, effectively denying their claim that they should be allowed to collectively bargain. In a unanimous decision the five-member board declined jurisdiction in the case and preserved the principle that college athletes are primarily students. Charles Oxender is an employment and labor attorney at Miller Canfield in Detroit. His primary areas of practice include traditional labor law, collective bargaining, grievance and arbitration processing.

Thorpe: Give us a quick thumbnail sketch of the decision and its implications.

The NLRB’s decision effectively evaded answering the question of whether college football players are “employees,” under the National Labor Relations Act, and determined that the National Labor Relations Board would not exercise jurisdiction over college athletes in order for them to form a union. The main argument for declining jurisdiction is that it would not serve to promote stability in labor relations (one of the primary purposes of the Act) to recognize Northwestern’s scholarship athletes as employees, where the Board would not be able to assert jurisdiction over the vast majority of college football programs, which are subject to individual state laws concerning unionization.

The main implication the ruling has is that, for now, college football players at Northwestern and other private colleges will not be able to form labor unions in order to require the colleges to collectively bargain over the terms and conditions of their “employment” of playing football.

Thorpe: What were the arguments of those in favor of unionization?

The dominant arguments in favor of unionization focused on the amount of time the college athletes spend dedicated to their sport and the massive amount of money being made by college’s through their football and basketball programs. The NLRB Regional Director found that the football players routinely spent upwards of forty to fifty hours a week engaged in football related activities, along with maintaining a full course load. Most of their football related activities were directed by the college and coaches in the program, and some of the athletes argued that they had to pursue different degree programs than they wished because practices and other football commitments were deemed a priority. Additionally, union supporters argued that the athletes do not receive the benefit of this revenue, largely due to NCAA limitations, and that the colleges unfairly make money off the student’s athletic performance. 

Thorpe: The National Labor Relations Board effectively evaded the direct question of whether the athletes are employees. Do you think that issue will be revisited?

It is quite possible that the question will be raised again in the future. Minimally, the petition caused some immediate change in the manner that the NCAA operates, and additional changes are likely. It appears that the Board intended to leave the possibility of returning to the case in the future to help advance some of the arguments made by the Union supporters. The biggest roadblock to college athlete unionization is the exact issue that led the Board to decline jurisdiction here: at most, the Board could only establish jurisdiction over 17 schools of the 125 that compete in Division 1 college football.

Thorpe: NLRB Regional Director Peter Ohr in Chicago ruled last year that scholarship players were employees based on the hours they spent each week on football. Players then voted, but the uncounted votes were impounded. Tell us about that.

The NLRB rules require the ballots to be impounded where there is a question about whether unionization is proper, as was the case here. If the Board had exercised jurisdiction and found the players were “employees” under the Act, the votes would have been counted, and the Union would have needed a majority (50 percent plus one vote) in order to be recognized. Since the Board declined jurisdiction, the ballots will be not be counted.

Thorpe: After Ohr’s initial ruling, the Michigan legislature acted to try and prevent organizing. What is the status of that effort?

The Legislature passed and Governor Snyder signed into law, Public Act 414 of 2014, which became effective December 30, 2014, and which modified the definition of “public employee” in Michigan to specifically exclude “a student participating in intercollegiate athletics on behalf of a public university in this state.”

The statute was specifically cited as an example of how allowing unionization at Northeastern would create a patchwork system through college football, as college athletes at the Big Ten Schools The University of Michigan and Michigan State University would be expressly precluded from forming a union even if the Board exercised jurisdiction over the Northwestern football players and allowed them to organize.

Thorpe: You recently wrote an article describing the board action as a “punt” and also said “Because the Board specifically reserved the right to revisit the decision should circumstances in college football or at Northwestern change, the decision might more accurately be described as a non-decision.” How do you see this issue eventually unfolding?

The way the Northwestern decision was written, the Board did not have a majority that would decide that college football players are not employees, which was the main issue presented in the case, but still thought that allowing college football players to unionize was not a great idea. I would expect that absent some major increasing problems with the way college athletes are treated, the decision will likely stand.

Additionally, the NCAA regulations are under attack on multiple fronts, with lawsuits pending asserting that it violates antitrust, and has illegally used college athletes’ intellectual property rights. As the recent changes in NCAA regulations has shown, public opinion and legal cases have forced the NCAA to change some of its more rigid positions concerning college athletes. It is likely that if the NCAA continues to make these changes, the NLRB will stay out of the fray, and follow the Northwestern decision.

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