Julia Tomassetti is a Jerome Hall Fellow at the Center for Law, Society, and Culture, Maurer School of Law, University of Indiana.

Last week, the NLRB declined jurisdiction over the dispute between Northwestern and its scholarship football players.  Others have critiqued the decision’s moral, political, and logical failings. Most (but see Ben Levin’s post) have not questioned its legal legitimacy.  They should.

In March 2014, scholarship players on the Northwestern Wildcats petitioned the NLRB for a union election.  Northwestern argued that the players were “student athletes,” and therefore had no right to unionize under the NLRA, which applies only to “employees.”  The NLRB Regional Director disagreed, and Northwestern appealed.

In a surprising decision, the Board did not reach the question of employee status.  It unanimously declined to exercise jurisdiction, arguing that doing so would not “promote stability in labor relations” for two reasons: (1) “the nature of sports leagues (namely the control exercised by the leagues over the individual teams)” and (2) “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)….”

Regarding reason #1, the Board explained that the NCAA and Big Ten Conference controlled many aspects of college football, in order to “ensure [its] uniformity and integrity.”  Exercising jurisdiction would not promote peace, because, “Many terms applied to one team would likely have ramifications for the NCAA, Conference, and other teams.”

What does this mean?  The Board nowhere suggests that the NCAA and Big Ten control so many terms of the work that Northwestern and the players are left with little to discuss.  And this argument would be indefensible.  The Board has held it is “not proper” to decline jurisdiction based on an employer’s claim that it lacks “sufficient control over the employment conditions of its employees to enable it to engage in meaningful bargaining.”

Why then does the NCAA and Big Ten’s control matter?  The Board appears concerned that players might bargain over terms of their work regulated by these entities, to the detriment of the “uniformity and integrity” of the industry.  However, the Board has already answered this question with a resounding “SO WHAT,” in another case involving education, and in which the stakes were much higher.  In Boston Medical Center (BMC) (1999), a Board majority found that medical residents were “employees.”  The dissent argued that allowing residents to unionize would not further NLRA policy, because “every aspect of the resident’s relationship to a teaching hospital is controlled by the national accreditation process.”  The dissent predicted that the majority decision would cause calamitous harm to graduate medical education, because residents might bargain over, and even win changes to, terms set by programs or outside entities for the good of the profession.  The majority’s response:

[T]here are often restrictions on bargaining due to outside influences, e.g., …specifications in a contract that limit what an employer may or may not do.  An employer is always free to persuade a union that it cannot bargain over matters in the manner suggested by the union because of these restrictions.

…

Nor can we assume that the unions that represent [residents] will make demands upon them or extract concessions form their employers that will interfere with the educational mission of the institutions they serve, or prevent them from obtaining the education necessary to complete their professional training.  If there is anything we have learned in the long history of this Act, it is that unionism and collective bargaining are dynamic institutions capable of adjusting to new and changing work contexts and demands in every sector of our evolving economy.

Northwestern neither discusses nor cites BMC, even when enumerating Board cases involving “other types of students.”  The Board contends football is “unlike other industries,” because manufacturing its product—an entertaining game—requires competitors to cooperate.  The observation is partially true, but trivial.  Surely the quality of medical education is of more consequence than the competitive turf of an “amateur,” “extracurricular” activity?

Further, concern that the players might venture to bargain over certain terms does not create a jurisdictional issue.  In Management Training Corp. (1995), another case Northwestern ignores, the Board held that whether an employer would be required to bargain with workers over terms controlled by outside entities was “not relevant” to jurisdiction.

In sum, Northwestern’s preoccupation with the stability of college football is hard to square with precedent.  As Levin points out, a premise of the NLRA is that worker activism is a “critical component of the labor market” and “necessary to democratic stability.”

The NLRA declares that its purpose is to address the “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association” (emphasis added).  Northwestern describes the collective power that the NCAA and schools obtained over players through their association as a reason not to assert jurisdiction: “[A]cademic institutions that sponsor intercollegiate athletics have banded together and formed the NCAA to, among other things, set common rules and standards…. The NCAA’s members have also given the NCAA the authority to police and enforce the rules and regulations.”  As a result, “the NCAA now exercises a substantial degree of control over the operations of individual member teams, including many of the terms and conditions under which the scholarship players…practice and play the game.”  In other words, the Board tells us that protecting the players’ right to organize would undermine the stability of a successful employer combination, a “necessary” “band[ing] together” to “control” the “many of the terms and conditions” of the athletes’ work.

The NCAA does not regulate what schools spend on coaches and facilities.  Apparently, tremendous variation across schools in these matters does not threaten football’s “integrity”—not like players organizing to mitigate hunger and exhaustion, protect the integrity of their minds and bodies, and realize the promise of a college education.  The agency charged with enforcing the NLRA should not defer to an employer cartel regarding the appropriate level of exploitation needed to keep an industry flush.

The Board’s second rationale for declining jurisdiction—its lack of jurisdiction over football programs sponsored by public institutions—is also infirm.  In other industries, the Board accepts legal pluralism as a fact of life, not an excuse to abdicate responsibility.  Medical residency programs again provide an example.  A national organization governs both private and state-affiliated programs.  In BMC, program residents rotated among public and private institutions.  The majority acknowledged that “our assertion of jurisdiction…will present numerous bargaining and enforcement problems.”  It noted, however, the “issues do not appear to be novel or insurmountable.”

Northwestern is sparse on law.  The Board expends much of its effort trying to convince us of the novelty of the dispute, suggesting that the law must have little to say about such an unprecedented situation.  This is untrue.  Worse, the Board’s rationale for not asserting jurisdiction—the success of an employer cartel in controlling labor conditions—is the very reason it should have asserted jurisdiction.