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College Athletes' Labor Struggle Isn't as Dead as It Seems

The NLRB punts on whether student athletes are employees—but not for the reason you may think.
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The Northwestern Wildcats play the Penn State Nittany Lions in 2012. (Photo: PROChristian M. M. Brady/Flickr)

The Northwestern Wildcats play the Penn State Nittany Lions in 2012. (Photo: PROChristian M. M. Brady/Flickr)

Should college athletes be considered employees first and students second? The National Labor Relations Board won't say.

In a five-to-zero vote on Monday, the independent federal agency opted not to assert its jurisdiction in an ongoing labor dispute between Northwestern University and the school's football team, declining to consider a petition by players seeking to form the nation's first-ever student athlete labor union. The decision marks a sour resolution to the union effort launched by former Northwestern quarterback Kain Colter in April 2014: the New York Times suggests that the decision is "effectively denying [players'] claim that they are university employees and should be allowed to collectively bargain ... preserv[ing], for now, one of the N.C.A.A.'s core principles: that college athletes are primarily students."

Except it doesn't, really. The NLRB didn't actually pass judgement; it punted. It's not like all labor organizations are reticent to take up this fight—after all, an NLRB regional director ruled last year that, under federal law, Northwestern football players were employees, catalyzing the players' union vote—but the organization's main body is basically balking at the potential nationwide chaos that this decision could produce. In a 19-page document, the agency argued as much:

[This 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.

It would not promote stability in labor relations to assert jurisdiction in this case. Is that a gaffe, a Freudian slip? It basically sounds like the NLRB is whiffing in order to preserve "labor relations that don't technically exist unless the board makes said decision," according to Vice's Patrick Hruby. This reasoning is, as the Atlantic's Yoni Appelbaum describes it, "baffling": "Once you concede that this is a question of labor relations, what does it matter that it'd provoke instability?"

A lot. According to a New York Times analysis of the burgeoning college football industry, Division I athletic department revenue jumped from $6.5 million in 1970 to $56 million in 2012, while each of the five major football conferences saw revenues climb from $28 million to $50 million, thanks in large part to new broadcast agreements for championship playoff games—agreements that cost ESPN $7.3 billion over 12 years, for a mere seven games each year. There's money being poured into college football, and a sudden wave of student unions at public institutions, where lucrative football programs are major revenue streams, could be terrible for universities already suffering from growing budget pressures.

There's money being poured into college football, and a sudden wave of student unions at public institutions, where lucrative football programs are major revenue streams, could be terrible for universities.

But the NLRB's decision is actually quite shrewd. This is due to the freakishly byzantine "composition and structure" of national college athletics. Because national conferences span private and public universities in states with different labor laws, the recognition of student athletes as employees would affect schools unevenly, depending on the composition of their regional league. As the Atlantic's Matt Ford points out, Northwestern is the only private university in the Big Ten Conference, an exception the NLRB explicitly took into account in considering whether to intervene in this specific case:

In such a situation, asserting jurisdiction in this case would not promote stability in labor relations. Because most FBS teams are created by state institutions, they may be subject to state labor laws governing public employees. Some states, of course, permit collective bargaining by public employees, but others limit or prohibit such bargaining....

To be clear, we are not suggesting that the NCAA's control over many of the terms and conditions under which college football players conduct their activities is an independent reason to decline to assert jurisdiction. We merely observe that bargaining in a single-team unit will not promote labor stability in this case.

With this in mind, that "labor relations" line in the NLRB decision can be taken as a wink and a nod to players' status as employees, a tactical decision made in the service of (maybe!) a future verdict that can be more comprehensively applied across college athletics. This is actually a fairly standard principle when it comes to national labor movements, like, say, the Fight for 15's push for a $15 minimum wage in cities like Los Angeles: Even economists set on the benefits of a nationwide wage floor recognize the prudence of incremental increases to allow pre-existing institutions time to adjust. The NLRB appears to be embracing the same logic as these economists. While they may agree in principle with the designation of student athletes as labor, it's important that this regulatory transition not immediately throw existing institutions into chaos. Sure, it feels like the NLRB is stalling for the right moment, but remember: Declining to make a decision now still gives the NLRB leeway to potentially recognize student athletes as employees, while laying out an even playing field from which every team at every institution can negotiate fairly and to the best of their abilities.

Economists acknowledge that this complexity poses issues, even if it's putting a hold on "doing the right thing" and doing away with the NCAA's student-athlete designation. "NLRB applies only to the private sector—a minority of the universities—and to universities as individual units." Temple University sports economist Joel Maxcy told Pacific Standard after Northeastern players' initial victory in 2014. In this case, only Northwestern—not the NCAA—is the bargaining unit. State universities are subject to each state's particular labor rules and are not even allowed in “right to work” states. And that’s just a start. (Who is eligible for the union and who's not, women's sports and Title IX, etc.) Interestingly, the complexity of change is often used as an argument against doing the right thing.

The NLRB announcement may not be great news for unpaid workers like college athletes, especially when taken in conjunction with July's federal appeals court ruling that interns can go unpaid when their work "serves an educational purpose." But we're in the middle of an interesting moment for labor unions in the United States. The recent spate of unionization movements at youthful media companies like Gawker, Vice, Salon, and the Guardian U.S. have put collective bargaining back in the spotlight. According to a new Gallup poll, support in unions has increased from 48 percent in 2009 to 58 percent this year, up five percentage points over 2014 alone. Hell, even the interns at the American Federation of Teachers are unionizing now. With a workforce increasingly subject to the turbulence of the "gig economy," it's no wonder young people of all stripes, from student athletes to blogger scabs, are thinking more critically about their power in the workforce.

For the student athletes on Northwestern's football team, Monday's decision may feel like a resounding defeat. But for college athletes nationwide, the NLRB's statement may have a less dour message: See you on the playing field.