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The NLRB Says No to Student-Athlete Unions... For Now

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This is what judicial restraint looks like, folks

Look for the union label... nope. Not there.
Look for the union label... nope. Not there.
David Banks-USA TODAY Sports

In a somewhat surprising move yesterday, the NLRB dismissed the petition of the Northwestern student-athletes asking for certification of the union. It only took a year and half for the NLRB to issue its ruling, dismissing the case entirely on jurisdictional grounds, and refusing to hear the case on its merits.

Before we get into the ruling itself, let's cover what this means for LSU: absolutely nothing. I am of the same opinion I was when the regional board ruled in the players' favor, absent a massive and unforeseen political shift, there is no chance that any SEC team forms a union any time in the near future.

The NLRB seems aware of this fact, and it is part of their rationale for declining jurisdiction. And even as a supporter of student-athlete rights and general reform, I can't find anything in the decision I disagree with. This was a judicial body looking at a political hot potato, and then wisely using its discretion to not pick the thing up and burn itself.

The NLRB's decision can be boiled down to one sentence, "We conclude that the Board should decline jurisdiction, although we limit our holding to the particular circumstances of this case." The NLRB even leaves open the possibility of reversing itself on jurisdiction in the future, stating that this decision is based on these specific facts at this specific time. It's important that they struck down the regional division's precedent regarding whether student-athletes are employees, but they were pretty careful not to create any precedent of their own.

So why did they decline jurisdiction?

First, the NLRB points out that just because they can act, it doesn't mean they have to. The board is able to decline jurisdiction if "the policies of the Act would not be effectuated." That's fancy lawyer speak for taking the case might be within the letter of the law, but it violates the spirit of the law and we're going to exercise some common sense.*

*If you're a statutory construction nerd, and why wouldn't you be, I don't think this decision makes too much sense without the recent Obamacare decision. Scalia has spent his career essentially gutting the concept of spirit of the law when applying the canons of construction. Roberts' opinion opened the door for applying common sense when looking at the meaning of laws, instead of rigidly applying the canons. This has nothing to do with anything you likely care about, but it makes my nerd heart go all a-flutter. The NLRB didn't cite King v. Burwell, but we're about to see a judicial battle over statutory construction in the next decade. Believe it or not, it is an ideological split that does not fall neatly on party lines. Sorry, law dork moment... you may proceed.

The NLRB pointed out that not only is Northwestern just one employer (and no one disputes they are an employer, just whether the athletes are employees... the law is weird, y'all), and it doesn't really negotiate with the players, all 125 FBS schools do. The NLRB only has jurisdiction over private schools, not state public schools, so at most, only 17 of the 125 schools could unionize if the NLRB ruled in the students' favor.

And they are right, this would lead to massive instability. Nowhere near a majority of schools will ever be under the NLRB jurisdiction, and creating a rulebook for, at most, 17 of 125 schools would not make a whole lot of sense. If, hypothetically, the students negotiated a concession from Northwestern, how could it be implemented without violating the NCAA rulebook over which Northwestern has no authority, just one vote.

Previous NLRB decisions regarding sports unions have always involved the entire league as one of the bargaining unit. In this case, it is at most ten percent of one bargaining unit, and right now, less than one percent. This is sound logic, and I'm all for judicial bodies exercising discretion.

Of course, a person does not get appointed to the NLRB without a little bit of political savvy. They aren't fools. They know that this is a political football, and they also know that no one really wants the Board being the arbiter of all disputes regarding college sport reform. So the Board looked for an escape hatch to get out of making a ruling, mainly because from the analysis, it is pretty clear the Board would have to rule football players are employees. So instead of issuing a ruling which could have unforeseen consequences, and result in a seismic shift in college sports, the Board punted.

They also, in the obscure way only a judicial body can, practically begged Congress to take action. The Board essentially said that there is a solution here, but it does not lie with them, it lies with actual elected officials doing their job. Which, frankly, is how political questions should be handled.

The Board also pointed out that the status of the students has changed since the regional board's rulings. The NCAA now allows four-year scholarships, one of the reforms requested by the potential union. There has been movement on other reforms by the NCAA, including giving the players' a voice in the governance of college sports and biggest of all, a cost of living stipend.

Yes, these reforms came because of the pressure of possible unionization, but it also came from public pressure and, even more importantly, the series of lawsuits in the courts over student rights which are not going away. It seems that the players have had some of their demands met without certification of the union, making the formation of the union a real open question.

However, the NLRB may have punted, but they did not pick up the ball and go home. They reminded the parties that they could very well exercise jurisdiction in the future, and it seems clear that they would rule in favor of the players, absent further reform. There is still the threat of unionization out there, though to be honest, it would be more likely from a public school in a union friendly state (we're looking at you, Syracuse).

However, it's not the union the players need, it's simply the threat of a union. The NLRB keeps that threat alive, but only to encourage further reform without the need for judicial intervention. The parties have done a decent job in the past year of making real reform on their own. Because trust me, the NCAA does not want reform by judicial fiat.

The parties have been exercising common sense, so the NLRB followed suit.