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NLRB Reverses Athlete Unionization Decision

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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.

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  • efgoldman

    Too bad. The NCAA, and especially the football factories, need shaking up.

  • sleepyirv

    I can understand NLRB’s not wanting to wreck havoc with a multi-million dollar industry without specific legislative direction, but it has to be done when a multi-million dollar industry has been able to form without having to fall within basic legal parameters. Let the NCAA figure out what they need to do to follow the law.

    • witlesschum

      That’s the weird thing, though, this decision limited too private schools wouldn’t wreak any havoc. Among the actual top football schools the only private blueblood is Notre Dame and right now Baylor and TCU are at the top level of competition. Even if those schools or other schools can use their ability to have player unions as a recruiting tool, its going to be a small percentage of FBS schools and isn’t going to affect competitive balance or anything that much.

  • Fighting Words

    Too bad. I would have really liked to have seen the results of the vote the players took to unionize in 2014. Unfortunately, the article seemed to suggest that the players would have opted not to unionize.

    • Yeah, I think it was pretty well shot down in the Northwestern locker room.

      • postmodulator

        Maybe the thinking was “Let’s not draw a lot of fire over a moot point?”

        To be clear, that still sucks. But maybe there was a pick-your-battles logic to the decision. I dunno. I’m bothered by the giant NCAA football factories and I’m basically part of one.

        • Joseph Slater

          I also heard that the players were saying the vote was going to be “no.” The NLRB could have allowed the ballots to have been counted, and then refused to issue any decision on the grounds that this particular case was now moot. But I guess they wanted to make a pronouncement on the issue. Which makes it especially interesting (to a labor law nerd like me) that they didn’t go all the way and say that the players were *not* employees.

      • Lord Jesus Perm

        My favorite part of that whole deal was the fact that IPods magically appeared in the players’ lockers after Trevor Siemean’s testimony.

  • dilan

    I definitely would want to hear from a labor law expert here. Because my reaction is the same as Erik’s– it shouldn’t matter to the NLRB whether this completely disrupts college football and destroys Notre Dame while elevating Alabama and Ohio State even further. What, are they betting on the games or something?

    But I don’t know enough about labor law and whether “disrupting the labor market” is elastic enough to cover this reasoning. I’d like to hear from someone who does.

  • Brien Jackson

    The actual writing of the decision is very odd, but I wonder if what they’re getting at isn’t that athletes would have to organize on the NCAA or at least conference level, rather than school by school. Pro leagues aren’t unionized by teams, after all. This would make some sense given how sports labor law works. What still remains curious is why the worker ruling was only applied to private schools in the first place.

    • Fake Irishman

      The NLRB only has jurisdiction over private employers. That’s why graduate teaching and research assistants aren’t allowed to have unions at most private schools, but in many states (e.g. California, Washington, Minnesota) are, depending on state law and regulatory rulings.

    • Joseph Slater

      Brien: I think your reading of the decision is correct, and if you add in Fake Irishman’s correct observation that the NLRB only covers private employers, voila, you have the NLRB’s rationale for its decision.

  • Gwen

    I imagine that this has now been heard by the full NLRB and administrative options are exhausted, that this issue can now be litigated in court?

    • Joseph Slater

      Actually, no. There is basically no way for unions/employees to appeal to court losses in what the NLRB calls “representation cases,” which this is. If this was an unfair labor practice case, they could appeal to court, but not a representation issue. So this is done.

  • efgoldman

    In college sports, the maximum anyone can participate is four years. D’you suppose that has an effect on the NLRB’s decision?

    • Joseph Slater

      It shouldn’t, and nothing in the opinion said it did.

  • Peterr

    From the NLRB “who we are” webpage:

    The National Labor Relations Board is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.

    Hmmmm . . . nothing there about “promoting stability in labor relations”. Maybe if I keep looking I’ll find it.

    From the NLRB “what we do” page:

    The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

    Funny, but I don’t see anything there about “promoting stability in labor relations” either.

    The phrase “promote labor stability” pops up frequently in various NLRB decisions, but (as far as I can see) it is used to mean that employers and unions can’t keep changing the rules on each other, which is very different from the way it is used here. For instance, in a 2007 opinion, the NLRB decision noted a tension in the NLR Act:

    Our inquiry here requires us to strike the proper balance between two important but often competing interests under the National Labor Relations Act: “protecting employee freedom of choice on the one hand, and promoting stability of bargaining relationships on the other.”[3] It is a well-recognized judicial doctrine that “the Board should be left free to utilize its administrative expertise in striking the proper balance.” [4]”

    In that particular case, the question was about the process of obtaining union representation in a messy situation, and the phrase “stability of bargaining relationships” summarizes the goal of making union-employer negotiating relationships stable, not maintaining the status quo for the sake of stability in the economic world.

    You know, if an NLRB panel finds that the status quo is exploitative and unfair, and the resulting ruling issued upsets the status quo to remove the exploitative and unfair behavior, that’s a good thing. Or at least that’s how the NLRB used to operate.

    The NLRB needs to either re-read their own website and actually apply it, or else re-write their mission and identity statements to reflect the new reality of their work. Declining to assert jurisdiction in this case was a weasely move to avoid taking a stand in favor of workers’ rights.

  • Joseph Slater

    Erik, I read the decision a bit differently than you did. I took the NLRB to mean what Brien Jackson says in the first part of his post above: that the NLRB thinks that the only meaningful type of bargaining that could happen would be on a conference-wide level (or higher, NCAA-level). As the decision points out, professional sports teams are organized on a league-wide model. It’s not as if the Lions could vote to be union and the Seahawks vote not to be union; and the key bargaining takes place with the league, not individual teams. Most of the big college football programs are public, including the vast majority of the Big 10. Indeed, I can’t think of any all-private Div. 1 conference (maybe the Ivy League?).

    The NLRB has no jurisdiction over public universities, of course, so the idea was that collective bargaining just couldn’t work, practically, at the individual school level, since so many of the rules and policies come from the league and the NCAA. I didn’t get so much that it would be giving a competitive advantage to one type of school over another.

    The NLRB did have to distinguish MLB and the NHL, where some teams are Canadian and therefore not under the jurisdiction of the NLRB, but, the NLRB reasoned, at least Canadian law gives pro athletes bargaining rights.

    Also, while I was rooting for the players, as the decision points out, this isn’t the first time the NLRB has declined jurisdiction over a group of workers even though they could arguably be considered employees, because the NLRB didn’t think the policies of the Act would be furthered by taking jurisdiction. The fact that this is a pretty pro-labor NLRB and a unanimous decision might indicate something here.

    Finally, the silver lining is that the NLRB did *not* hold that the players were *not* employees. It just held that collective bargaining rights wouldn’t work well. That leaves open the door wide for suits claiming the rights of “employees” under various employment laws — notably the FLSA.

    • dilan

      Again, I don’t know anything about labor law, but are we sure the “league wide” thing is an NLRB requirement, rather than a choice the workers and unions make?

      I get the feeling that nobody else here knows anything about labor law either. I’d sure like to see a comment from an actual labor lawyer about all this.

      • Joseph Slater

        Dilan: Not to be all “appeal to authority”-ish, but: I practiced labor law for over a decade; I’ve taught labor law (both public and private sector) for 16 years; and I’m a co-author of two casebooks on labor law. I stand by my statements above, at least as an explanation of what the NLRB says it was doing.

        If what I said wasn’t clear to you, or if you have a specific question, let me know.

        • dilan

          That’s fine, but you didn’t really answer my question, which is whether there is law (i.e., statute, regulation, caselaw, administrative ruling) that says that players can’t form unions at the team level rather than league-wide (assume a separate ownership model, not a single entity like the MLS)?

          That’s a pretty simple question. And it isn’t answered by the fact that players’ guilds organize at the league level; they have plenty of good reasons to do so even if it isn’t legally required.

          • Joseph Slater

            Sorry if I didn’t answer your simple question quickly enough; I guess I was distracted by your insinuation that I didn’t know what I was talking about. But I’ll now summarize what the (publicly-available) opinion says.

            There is no statute or regulation that requires league-wide organization. The NLRB, however, said that bargaining would not work well on a team-by-team basis, and indeed would be “unprecedented,” citing a series of cases involving various professional sports leagues. It argued that “it would be difficult to imagine any degree of stability in labor relations if we were to assert jurisdiction in this single-team case,” quoting a previous case involving the NASL.

            It has a longer discussion of why single-team bargaining units wouldn’t work. If you want more on that, the actual decision is only 6 pages long, and is not written in especially technical laywer-ese. Hint: it’s in good part what I said above: the leagues and the NCAA make the rules and set the standards that affect the players most, as with pro leagues.

            • Brien Jackson

              Right. I don’t know if there’s a statute so much as it’s a logical conclusion of the way sports business is organized. And this is even more pronounced in college sports I would say. For example, if Northwestern unionizes can the Big Ten expel them? If players negotiate with the school to be paid an annual salary can the NCAA declare the entire program ineligible?

              • Scott Lemieux

                And these are the kinds of considerations federal regulatory agencies take into account when they’re delegated policymaking power by Congress. There’s nothing unusual about it.

          • Brien Jackson

            Well it seems to me that it has to be either or, and it’s clearly preferable for players to organize at the league level than individually.

      • Brien Jackson

        Well the leagues set rules for competition, eligibility, etc., and a substantial portion of revenue derives from them. If we’re talking about pro leagues especially it makes far more sense for all players to be unionized against the league than to be unionized on an individual basis.

        • dilan

          That’s not my question, though.

          I am asking whether it is the law. If it is, perhaps the NLRB’s action here is reasonable. If it is just something the players’ guilds do for their own good reasons, the NLRB would be making new law here.

          • Brien Jackson

            Well yes, there are laws that allow it. Is it required? I guess I don’t know, but I don’t see any reason the NCAA/Big Ten/SEC/Etc wouldn’t be treated the same as the professional sports leagues in this regard since the business model is the same.

      • Scott Lemieux

        I’d sure like to see a comment from an actual labor lawyer about all this.

        It’s like, how much more Dilan could this comment be?

    • Peterr

      The NLRB has no jurisdiction over public universities, of course, so the idea was that collective bargaining just couldn’t work, practically, at the individual school level, since so many of the rules and policies come from the league and the NCAA.

      I disagree with the bolded section of your comment. The rules and policies you refer to are about recruiting, transferring between schools, prohibiting various activities like paying athletes, and rules about the relationship between various schools. In reading the original ruling by Peter Sung Ohr in the NLRB’s Chicago district (which has now been overturned on appeal), on the other hand, one finds a whole host of local rules set by the University and the coaching staff, which have a great deal of impact on the day to day life of the athletes:

      In the instant case, the record establishes that the players who receive scholarships are under strict and exacting control by their Employer throughout the entire year. Commencing with training camp which begins approximately six weeks before the start of the academic year, the coaches exercise a great deal of control over the players. This is evidenced by the fact that the coaches prepare and provide daily itineraries to the players which set forth, hour by hour, what football related activities the players are to engage in from as early as 5:45 a.m. until 10:30p.m., when they are expected to be in bed.32 Not surprisingly, the players spend 50 to 60 hours per week engaging in football-related activities during training camp. In addition, the location, duration, and manner in which the players carry out their football duties are all within the control of the football coaches.

      When the regular football season begins, the players do not commence classes for another few weeks so they are still able to devote 40 to 50 hours per week on football related activities. Apart from their practices, meetings, film sessions, and workouts, the players must now also compete in football games against other colleges on Saturdays. These games are clearly a large time commitment for the players regardless of whether it is a home or an away game. In fact, if the team is playing an away game, it is not unusual for the players to have to spend 25 hours over a two day period traveling to and from the game, attending practices and meetings, and competing in the game. The team’s handbook also makes it clear that the players are “traveling for one reason: to WIN a football game.” And of course, the coaches have control over where the team will spend the night before the game (which is done for both home and away games), the travel itinerary which spells out in detail what will occur throughout the trip, the players’ dress attire while in travel status, and which players will play in the game and to what extent. While the NCAA limits CARA hours to 20 per week once the academic year begins, the evidence establishes that the players continue to devote 40 to 50 hours per week to their football duties all the way through to the end of the season, which could last until early January.33

      The football coaches are able to maintain control over the players by monitoring their adherence to NCAA and team rules and disciplining them for any violations that occur. If a player arrives late to practice, they must attend one hour of study hall on consecutive days for each minute they were tardy. The players must also run laps for violating minor team rules. And in instances where a player repeatedly misses practices and/or games, he may be deemed to have voluntarily withdrawn from the team and will lose his scholarship. In the same way, a player who violates a more egregious rule stands to lose his scholarship or be suspended from participating in games.

      In addition, the coaches have control over nearly every aspect of the players’ private lives by virtue of the fact that there are many rules that they must follow under threat of discipline and/or the loss of a scholarship. The players have restrictions placed on them and/or have to obtain permission from the coaches before they can: (1) make their living arrangements; (2) apply for outside employment;34 (3) drive personal vehicles; (4) travel off campus; (5) post items on the Internet; (6) speak to the media; (7) use alcohol and drugs; and (8) engage in gambling. The fact that some of these rules are put in place to protect the players and the Employer from running afoul of NCAA rules does not detract from the amount of control the coaches exert over the players’ daily lives.

      Note well that last sentence. Some rules are NCAA-driven, but the control exerted by coaches is overwhelming.

  • Docrailgun

    I hope that someday universities will be barred from profiting from sports. Ah, well… not going to happen.

  • Joseph Slater

    Peterr: I’m just descrribing what the NLRB held. You can disagree with them if you want, of course.

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