In this seven-page decision the NLRB declined to exercise jurisdiction on the matter noting that doing so “would not serve to promote stability in labor relations.” The NLRB’s analysis emphasized the composition and structure of FBS football, noting that only private institutions are subject to the NLRA and that an overwhelming majority of competitors are public colleges and universities. The NLRB also pointed to changing conditions in college athletics and reform efforts undertaken by the NCAA as a reason for not asserting jurisdiction.
While the NLRB’s decision is undoubtedly a set-back for proponents of the labor movement, the ruling was carefully limited by the NLRB leaving open a number of avenues college athletes could pursue reform under current labor laws.
First, college athletes at private institutions may continue to petition the NLRB for recognition as statutory employees under the NLRA. By dismissing the claim on procedural grounds and not ruling on the merits of the claim, the NLRB left open the possibility for themselves to render a substantive decision in the future. In its ruling, the NLRB explicitly stated that its decision did not preclude reconsideration of the issue in the future and would even consider revisiting the Northwestern case.
“If the circumstances of Northwestern’s players or FBS football change such that the underpinnings of our conclusions regarding jurisdiction warrant reassessment, the NLRB may revisit its policy in this area.”
Apart from unionization efforts, antitrust litigation may be the most viable path for major reform in college athletics. An antitrust case avoids many of the issues the NLRB cited when dismissing the Northwestern football players’ petition. Unlike federal labor laws, the U.S. antitrust laws would apply equally to every university – whether private or public - and would not create the type of on-field inequality that concerned the NLRB.
College athletes have already seen promising developments in their labor pursuits through antitrust cases. In a case brought by former UCLA basketball player, Ed O'Bannon, it was ruled that the NCAA violated antitrust law when they agreed with member schools to restrain the ability to compensate men’s basketball and FBS football players for use of the athlete’s names, images and likenesses. While promising, this case has been appealed by the NCAA.
Regardless of the source, it is clear that the terms and conditions of college athletics are changing. In the wake of the NLRB ruling, the NCAA has unilaterally instituted guaranteed four-year full cost of tuition scholarships, issued cost of living stipends, and improved the medical treatment of college athletes. The pressure created by these types of litigation has forced the public to take notice and it appears that more changes are forthcoming. Former quarterback and leader of the Northwestern football players’ unionization movement, Kain Colter, promised to continue to push for reform despite the recent NLRB decision. Colter stated after the ruling, “this isn't the end. This isn't going to stop us from pushing for college athlete rights. That will eventually come. If it's not going to happen this way, we'll get it another way."