United States Labor Relations Board Cowardly Punts its Duties

by | Aug 31, 2015

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About Anne Marie Lofaso

Anne Marie Lofaso is the Arthur B. Hodges Professor of Law at West Virginia University College of Law, specializing in labor law, jurisprudence, and constitutional law. She is the Vice President of the West Virginia Advisory Committee to the United States Commission on Civil Rights. She received her D.Phil. in law from Oxford under the supervision of Sandra Fredman.


Anne Marie Lofaso “U.S. Labor Relations Board Cowardly Punts its Duties” (OxHRH Blog, 31 August 2015) <https://ohrh.law.ox.ac.uk/united-states-labor-relations-board-cowardly-punts-its-duties/> [Date of Access].|Anne Marie Lofaso “U.S. Labor Relations Board Cowardly Punts its Duties” (OxHRH Blog, 31 August 2015) <https://ohrh.law.ox.ac.uk/united-states-labor-relations-board-cowardly-punts-its-duties/> [Date of Access].

Earlier this month, the United States witnessed a major setback for freedom of association. The National Labor Relations Board (the Board)– the U.S. agency charged with “encouraging the practice and procedure of collective bargaining” – issued its long-awaited decision in the Northwestern University case, in which it declined to fulfill its obligations under the National Labor Relations Act (NLRA).

In a unanimous decision, the Board dismissed college football players’ petition for union representation. The Board did not base its decision on a substantive analysis of the merits. Instead, it declined to assert jurisdiction over the case, leaving unanswered the threshold question: whether Northwestern University scholarship football players are employees under NLRA Section 2(3). The Board explained that it had never “been asked to assert jurisdiction[] in a case involving scholarship football players. . . . Processing a petition for the scholarship players at this single institution . . . would not promote stability in labor relations.”

Section 2(3) serves as gatekeeper to NLRA Section 7, which grants employees “the right,” among other things, “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Any person who falls within the statutory definition of an “employee” holds Section 7 rights.

Had the Board reviewed the merits of this case, it could reasonably have found that these college athletes were employees. That definition broadly “include[s] any employee” unless otherwise exempted. Because none of the exemptions apply, it is instructive to review the most prominent tests for employee status: (1) are these players “servants” (do they “perform service[s] in the affairs of another . . . and [are] subject to the other’s control”) or (2) does the university have an economic relationship with the players. Here, the players are employees under either test. It is undisputed that Northwestern tightly constrained the activities of its football players and that the team generated $30.1 million in revenue and $21.7 million in expenses in the 2012-2013 academic year. That’s more than $8 million in profit generated directly or indirectly from these players!

Legal arguments supporting a conclusion that these players are non-employees are thin and based largely on the discredited NLRB decision in Brown University. In dismissing the petition, the Board made an end-run around this legal analysis, grounding its decision on the policy rationale that asserting jurisdiction over a single team that is part of a college football league “would not promote stability in labor relations.” The Board – charged with protecting employees’ rights – punted its exclusive responsibility to determine whether these players are entitled to union representation on the implicit rationale that allowing players to organize might upset the university’s multi-employer association, the National Collegiate Athletic Association (NCAA) Division I Football Bowl Subdivision (FBS), a league that regulates 128 universities. This is akin to telling Disney film production workers that they cannot exercise their statutory rights because that may upset how Disney, SONY, and Lionsgate conduct business with one another.

Fundamental rights cannot be dependent upon capitalist infrastructure. Northwestern football players, disgruntled over regimented schedules, insufficient food stipends, and unauthorized use of their names and images for profit , pushed back on this infrastructure. They essentially said, “If you treat us as employees then we want a share of profits. Otherwise, treat us like students.” Rather than rescuing these players from exploitation, the Board hid behind the mantra of labor stability to protect an institution that is inherently unfair to its most vulnerable.

Social change rarely happens smoothly. There usually is some commercial disruption whenever workers seek to better their working conditions by banding together to strengthen their cause. The Board had an opportunity to pull the curtain and expose the Wizards of FBS, revealing them as leaders in the commercial arms race we call American college football. Had the NLRB done that, we might have seen universities make concessions to athletes that could have reverted them to true student-athletes, thus triggering transformative change in college sports. Instead, the cowardly lion evaded its duty, forcing us to strategise about our next opponent.

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