The full National Labor Relations Board rejected the initial ruling that Northwestern football players could unionize. They used some strange logic to do so, effectively using a competitive balance argument that since the ruling could only cover private schools, it might give those schools a competitive advantage since they could offer benefits that public schools couldn’t. Or wouldn’t since of course they could if they wanted to create a model that was not rank exploitation.
Even if the scholarship players were statutory employees (which, again, is an issue we do not decide), it would not effectuate the policies of the Act to assert jurisdiction.
Because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction.
But I don’t see what business it is of the NLRB to worry about competitive balance in college football. How is that part of its mandate? It’s not. Stephen Greenhouse on Twitter speculated the NLRB was worried deciding in favor of the players might enrage conservative politicians but I am skeptical since they already hate the agency.
Disappointing decision from a usually good group of people at the NLRB.