Bradford L. Livingston
Bradford L. Livingston
Frank J. Saibert
Frank J. Saibert
Northwestern University football players run through drills Monday at practice at the University of Wisconsin-Parkside campus in Kenosha, Wis. The same day, the National Labor Relations Board ruled that the players don’t qualify as school employees for the purposes of forming a union.
Northwestern University football players run through drills Monday at practice at the University of Wisconsin-Parkside campus in Kenosha, Wis. The same day, the National Labor Relations Board ruled that the players don’t qualify as school employees for the purposes of forming a union. — AP Photo/Jeffrey Phelps

The decision Monday by the National Labor Relations Board does not close the door on college football unionization.

But in declining to rule on whether or not football players at Northwestern University are school employees, the board showed future petitioners it’s a long drive to the goal line, labor attorneys say.

“If they couldn’t be successful under this current board as constituted now, their chances are not going to get better,” said Frank J. Saibert, a partner at Nixon, Peabody LLP who expected the pro-labor board of Obama appointees to rule in favor of the petitioning players.

“This was definitely the board to try this under.”

In a seven-page decision, the five-member board emphasized that the decision applied only to Northwestern football players, whom the NLRB regional director in Chicago ruled last year were indeed university employees and eligible to unionize.

The decision, the board wrote, would not apply to athletes at other schools nor to other students who work for universities or colleges.

“The scholarship players do not fit into any analytical framework that the (b)oard has used in cases involving other types of students or athletes,” Chairman Mark Gaston Pearce wrote.

Additionally, the ruling says that college football players are unlike either professional athletes who lack academic responsibilities or other students who work as support staff for their respective universities.

But the key difference between football players and support-staff students such as janitors or cafeteria workers, the board ruled, is that one team of players cannot perform its duties alone. It needs another team for competition.

“There is no ‘product’ without direct interaction among the players and cooperation among the various teams,” the decision says.

The NLRB only has jurisdiction over private employees. And because only 17 of the 125 teams in the NCAA Division 1 Football Bowl Subdivision (FBS) are private schools — including Northwestern — players for most teams would not be subject to NLRB rules.

“As a result, nothing in our precedent requires us to assert jurisdiction in this case,” the decision says.

Saibert called the board’s rationale “a good one.” Northwestern is the only private school in the Big Ten Conference, meaning even an attempt to unionize in the conference alone would require action in 11 states, each of which possesses different labor laws.

And of course football teams play non-conference games too. This year, Northwestern plays Duke University from North Carolina, where public-sector collective bargaining is illegal.

If the NLRB granted Northwestern and the other 16 private FBS schools the right to unionize, “it would be a nightmare to administer,” Saibert said.

Between the NLRB ruling’s inability to be appealed, the strong pro-union leanings of the current board and potential challenges enforcing a split union and non-union playing field, Saibert called this decision “the end of the road” for football players at private schools attempting to be unionized.

Unlike Saibert, Bradford L. Livingston expected the ruling.

“The NLRB won’t duck issues very often, but in this case it was a politically expedient decision,” said Livingston, a partner at Seyfarth, Shaw LLP.

While Livingston views the board’s decision as sound because it avoids the “mess” alluded to by Saibert, he said that by declining to rule on the employment status of the players, the board did not have to rule directly against organized labor.

That decision will then provide the board cover for future rulings with broader impact, particularly those that are deemed more anti-management, Livingston said.

“To a great extent, this case is an anomaly,” he said. “We all have an interest in it because we love sports. … But in the grand scheme of things, organized labor’s sweet spot is not the student athlete.

“So this case has been interesting but is, in a sense, a footnote in labor law.”

The other political consideration is that Republican leaders in both the House of Representatives and the Senate — who serve on the respective committees that control NLRB funding — jointly filed a friend-of-the-court brief last year disagreeing with the NLRB regional director’s ruling that Northwestern student-athletes are school employees.

“I’m certainly not suggesting that there’s a direct connection,” said Livingston, who authored that brief. “But to the extent that the House and Senate are unhappy with the board’s approach to cases, they’re less likely to provide it with funding.”

The question of weighing this ruling in light of future ones was on Robert T. Zielinski’s mind too.

A principal at Miller, Canfield, Paddock and Stone PLC who represents employers, Zielinski said that the board had to weigh this ruling against upcoming cases involving the employment status of graduate students.

“Whatever they said about athletes, they’d have to be able to square up with what they would say about graduate students,” said Zielinski, who was hoping that the ruling would provide guidance on other issues surrounding higher education.

Instead, it was “a clever way to get around the problems they were facing,” he said.

Like Saibert and Livingston, Zielinski acknowledges that the NLRB left the door open for future petitioners, but that any attempt “would be really hard.”

“I think they left themselves so many caveats that it’s almost more of a non-decision than it is a decision,” he said.

Representing Northwestern before the NLRB were Joseph E. Tilson, Alex V. Barbour, Annaeliese Wermuth and Jeremy J. Glenn — all partners of Cozen O’Connor.

Representing the union — the College Athletes Players Association — were Stephen A. Yokich of Cornfield and Feldman LLP and John G. Adam of Legghio & Israel, P.C. in Royal Oak, Mich.

The case is Northwestern University and College Athletes Players Association (CAPA), 13–RC–121359.