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College Football Unions: College Athletes Players Association and the NLRB

Last week the NLRB punted on a decision that could alter the landscape of collegiate athletics. To better understand this choice we must examine the NLRB's decision to not exercise jurisdiction.

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For this topic, I need to make clear that, although I am a lawyer, I do not practice in this area. My knowledge in this area is 100% based on the 19-page decision. You should not consider this to be legal advice in any way, shape, or form.

The issue of jurisdiction is the threshold question in each and every judicial action in the United States. The quickest way to get out of a traffic ticket is to show that there is no jurisdiction. Think of it this way, if you were speeding in Duluth, would it be reasonable to have to appear before a court in Rochester? Probably not, but maybe. Jurisdictional questions are tough and some lawyers make a lot of money by being better than you or me at answering those questions.

The first question that needs to be answered is this, "What does the NLRB have jurisdiction over?" The NLRB is a federal agency that protects employees of private employers by ruling on disputes over unionization, working conditions, and wages. The NLRB website publishes its rules on jurisdiction here, but the August 17 decision makes very clear that NLRB does have the statutory jurisdiction over Northwestern University. You may ask, "So if the NLRB admit that they have jurisdiction, then what's the hold up here?" The issue is centered around the wiggle room the NLRB has built into its jurisdictional rules. Even in cases where jurisdiction exists, the NLRB can opt to not exercise jurisdiction. A punt is the perfect analogy here. Just because it might seem counterproductive to punt on third and short, doesn't mean Jerry Kill can't send out Peter the Great to put one inside the five. In short, the NLRB made a decision Kirk Ferentz would be proud of.

Inside NU's Union Coverage

The NLRB declined to exercise jurisdiction because doing so might have harmed the stability of labor relations between public and private schools in the Big Ten and NCAA. The NLRB has decided that overtly approving unionization of college athletes at private schools would create a competitive imbalance between public and private schools. While I would argue that maintaining an even playing field in a given industry is not the mission of the NLRB, the NLRB decision makes great effort to draw a distinction between sports and other industries. The decision points out that sports leagues and competitions inherently rely on cooperation between otherwise adverse parties to set common rules and maintain a competitive atmosphere, unlike other industries. While that is true to a certain extent, I don't necessarily see how a decision to uphold the previous ruling would diminish that ability. It seems as if there is ample evidence of industries being split between union workers and non-union workers. While there is certainly tension in those instances, it is up to each party to promote its positives in order to attract both members and consumers. I fail to see why similar self-determination would not be possible in a sports setting.

Like most decisions declining jurisdiction, the footnotes offer some meat here. The NLRB does recognize that they exercised jurisdiction when an athletic conference was accused of interfering with the unionization and employee status of referees. That tells me two items need to be argued in order to convince the NLRB that they should exercise jurisdiction. First, convince the NLRB that the unionization and employee status of student athletes is similar to the same issues regarding referees. Second, make the "defendant" in the case not a single institution, but an entire athletic conference. The second hurdle would be the toughest to clear. Perhaps the ACC, with its higher number of private schools, could be named in a similar action in the future. The easiest way to promote this change would to have a Power Five Conference voluntarily choose to allow unionization from the inside. For that, I would look to the Big 12, a conference with a bruised ego after having its schools poached by other conferences only to be left out of the inaugural College Football Playoff. I believe that a conference-wide player union could give a recruiting edge to its members much in the same way integration did for northern schools decades ago. More likely, however, the threat of such an action would be used as a bargaining chip elsewhere in Power 5 rules negotiations, perhaps over satellite camps.

One last item to note is that this NLRB decision did not address the issues of unionization and employee status either for or against. The NLRB has no opinion, as of yet, as to whether or not student athletes are employees or whether or not private schools have to allow unions to form.

Personally, I haven't really decided whether or not a college player's union would be a good thing. It would be interesting, and it would definitely help my cause of paying college athletes the true value of their skills, but I'm not sure if that benefit outweighs possible negatives. What are your thoughts?