The National Labor Relations Board's decision on Monday that it wasn't going to make any decision on the Northwestern University football unionization case can most aptly be described as weird.
From the beginning, the heart of the case has been whether football players are Northwestern employees, but the board made plain that it didn't want to even consider that question. The NLRB doesn't dispute the factual findings from a regional director's decision last March that Northwestern players are employees with a right to unionize, and it does not reject the notion that athletes could be considered employees by someone willing to, you know, consider it.
In the end, though, after a year and a half to make a decision, the board just went ¯\_(ツ)_/¯.
Here's a look at the strangest parts of a ruling that has perplexed legal observers and journalists alike.
Why is the NLRB concerned with competitive balance?
The National Collegiate Athletic Association has long stated that its amateurism rules need to be preserved in order to maintain competitive balance within college sports. Competitive balance doesn't actually exist in college football, but let's humor the NCAA and entertain such a world: Why the hell would the NLRB care?
The NLRB is in charge of determining whether something is allowable under labor law, and if it isn't, then the NCAA needs to find a new way to attempt to balance itself. Why does the NLRB care that Northwestern might beat Western Illinois 50-6 instead of 30-6?
Alabama's inability to keep up with Northwestern hurt the Wildcats' case.
Well, that's a sentence I never thought I'd type. But the NLRB was extremely worried that Northwestern players might be able to get more perks than those at Alabama (or any other public school), since public schools would not be under the NLRB's jurisdiction.
Which is strange, since unionized employees work side by side with non-unionized employees all the time. It also should have nothing to do with players' employee designation or ability to unionize. However, it was the deciding factor for the board:
After careful consideration of the record and arguments of the parties and amici, we have determined that, 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. Our decision is primarily premised on a finding that, 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 in this case.
The NLRB is counting on the NCAA to change itself.
In what is by far the strangest part of the ruling, the NLRB decided that since the NCAA — which is not a party to the case — will allow Northwestern to treat its players better in the future, then athletes don't need a union. That is stunningly strange, for two reasons:
- The whole point of unions is to take trust out of the equation and not allow management to exploit employees. If we're just going to trust any company that shows small reforms, then why have unions in the first place?
- The NCAA only started reforming itself after immense pressure from this case and antitrust suits. Why would they continue with the pressure off?
The NLRB is supposed to give workers a voice. The NCAA has proven that it is committed to not giving athletes a voice. The NLRB anointing the NCAA makes no sense.
Even anti-union people were surprised.
The ruling represents a complete shift in behavior for a board that has routinely drawn ire from conservatives for its "union activism."
I spoke to one management attorney who said that while he was pleasantly surprised to see that the board did not side in favor of the College Athletes Players Association, he, too, was perplexed by the logic.
Both the specific Northwestern case and college sports amateurism in general are complex legal issues, but the NLRB essentially abandoned key components of labor law, threw up its hands, and gave the issue to Congress or the courts to handle. Regardless of which side you're on, it just doesn't make a lot of sense.