No college football players union...for now

The National Labor Relations Board unanimously decided to punt on the question of whether Northwestern University Wildcat football players may form a union to bargain for better "wages," in the form of higher or more secure grant-in-aid scholarships, and for better benefits and "working" conditions. Regardless of what you think of college sports or the NCAA, the NLRB was right.

Trevor Siemian of the Northwestern Wildcats is about to pass in a game against the Minnesota Golden Gophers, October 11, 2014.
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Trevor Siemian of the Northwestern Wildcats is about to pass in a game against the Minnesota Golden Gophers, October 11, 2014.

The NLRB decided not to decide the question of whether college football players were really more employee-athletes than student-athletes. The labor board decided instead that, under the "novel and unique" circumstances presented by the case brought by the College Athletes Players Association against Northwestern, resolving that question about this team, at this school, at this time "would not serve to promote stability in labor relations." That is the agency's core mission under the National Labor Relations Act.

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Why did the board refrain from exercising power in this case when, in recent years, it has inserted itself so aggressively in areas not traditionally thought to be within the scope of its responsibilities, such as social media and at-will policies in the non-union workplace?

The NLRB recognized it had no playbook in the form of readily applicable past decisions to address this case. College football players are different in important ways from superficially similar groups that the NLRB has allowed to unionize. The Wildcats aren't like graduate teaching assistants or student cafeteria workers because the players are receiving money, in the form of scholarships, to participate in an extracurricular activity. College football players aren't like their unionized NFL counterparts because they must be enrolled as students and comply with NCAA restrictions that don't apply to pros, such as a ban on payments for endorsements.

College team sports are like their professional counterparts in the sense that they have banded together to form governing bodies that set the rules. In the case of college football, those institutions are the NCAA and conferences such as the Big Ten, in which Northwestern plays. "As in professional sports, such an arrangement is necessary because uniform rules of competition and compliance with them ensure the uniformity and integrity of individual games."

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Applying a special set of labor rules to a single team within a conference would not promote labor stability within that conference any more than applying a set of labor rules to a single NFL football team would promote labor stability in pro football. That's what would have happened had Northwestern football players been allowed to unionize. Northwestern is the only private school in the 14-member Big Ten Conference. The NLRB has no power over state-run schools. Ohio and Michigan, with three schools among them in the Big Ten, both have laws that expressly define student athletes attending as non-employees. Applying federal unionization laws to a single team in the Big Ten would create imbalance in the conference, not uniformity and stability in labor relations.

So, by exercising restraint, has the NLRB abandoned these players on the field of play for all time? Does this ruling eliminate any incentive for colleges and universities to change a system that some consider exploitative?

Quite the contrary. The board approvingly cited recent NCAA reforms that have improved the way players at Northwestern and other schools are treated. The board warned, though, that any deterioration in the conditions faced by college athletes could make it rethink its decision to stay on the sidelines.

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The board was right. This was the wrong question before the wrong agency at the wrong time. Whatever problems there are in the way college athletes are treated are for now best addressed in other forums and other ways. However, the board's decision was without evident enthusiasm and came only with the smell of reform in the air.

Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.