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Affluent Christian Investor | October 21, 2017

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The NLRB Cannot Stop Northwestern’s Football Players From Unionizing

US Navy College Football Game

Last year there was a burst of excitement in some quarters over the prospect of college football players forming a union. Leftists nearly always think that unions are good because they supposedly promote social justice and when an apparent majority of the players on Northwestern’s team said they wanted to form a union, that gladdened many a collectivist heart.

Then, the regional director of the National Labor Relations Board in Chicago gave the players the green light. Joy!

But on August 17, however, the full National Labor Relations Board unanimously declined jurisdiction, which means that it won’t pursue the case further. Joy was crushed.

The key element in the earlier ruling was that college football players are close enough to the definition of “employee” in the National Labor Relations Act (NLRA) that they were eligible to seek union representation under the law. The full board ducked that exact question, saying that the Northwestern case presented “novel and unique” circumstances. Football players, the board said, “bear little resemblance to graduate student assistants or student janitors and cafeteria workers whose employee status the board has considered in other cases.”

Some people, however, insist that the fight will go on. For example, Eddie Comeaux, professor of education at UC Riverside is quoted in this Diverse Education article as saying, “Given what we’ve seen happen and the traction that we’ve seen, we are unlikely to see the case die here.” Professor Comeaux thinks that the case will “escalate further to a federal court.”

No, that’s not likely. NLRB decisions can be appealed to federal circuit courts, but those courts do not have to take every case that the losing party wants to appeal. And even if a court (the Seventh Circuit in this instance) did accept this case, I think it would be freakish to get a panel (three judges sit on court of appeals panels) where a majority was willing to overrule the NLRB on a decision not to take up a case.

Comeaux points to the O’Bannon case, but that was an antitrust case where the plaintiff had good grounds for his suit. The NCAA really does restrain trade in violation of the Sherman Act. That, however, has no bearing on the issues here, which involve the definition of employee under the National Labor Relations Act and whether the purposes of that statute would be advanced by letting the unionizing camel get its nose under the college sports tent.

In any event, the idea of unionizing football teams at some private universities (state law would govern that question at state universities, which are the great majority of big-time football and basketball schools) was always a silly idea.

As I wrote in this piece last April, when that initial ruling was announced, players “have been admitted as students and can be removed from the team or even flunk out of the school entirely if their academic work is not good enough.” It was stretching the wording of the law too far even for the left-leaning NLRB to call college football players “employees” of the school.

Besides, the notion that all of the players would be better off if the team was represented by a union (the Steelworkers wanted to represent the Northwestern team) is fantasy. College big-sport athletes already have a very good deal that soaks up a lot of revenue. Few schools break even on their football and basketball programs. Unlike the NFL, there isn’t any big stash of money that a union can siphon off into the pockets of the players.

Despite the NLRB’s ruling and all of the reasons why unionizing a college football team is absurd, the fact is that the players can go ahead and create a union or join any existing union if they want to.

You see, the NLRA says that if you form a union under its provisions and it is certified by the NLRB, then it gets some big legal privileges. It does not, however, say that people may not form unions in other ways.

The reason why people almost invariably want the NLRB imprimatur is that such a union then a) becomes the exclusive representative of all the workers, even those who don’t want such representation, and b) can legally compel the employer to bargain with it “in good faith.”

Both of those provisions are wildly at odds with the neutral rules of the common law, under which no one had to accept someone else as his agent and no one was forced to bargain with anyone else. Common law contracts required mutual agreement, which is destroyed by coercion. To help unions, the NLRA overturned the neutrality of the common law by injecting legal coercion. It is one of those “some animals are more equal than others” laws.

But it is perfectly legal to form a union without the sanction of the NLRB. Any player on the Northwestern team is free to join the Steelworkers or any other union; equally, the players are free to form their own union. The resulting union could then seek to negotiate with the school. Northwestern, of course, would be free to either agree or decline.

Such voluntary, members-only unions can and do exist. For example, the United Electrical, Radio, and Machine Workers has a members-only local at General Electric’s Grove City, PA facility. It is not officially recognized by the federal government, yet exerts influence on the company anyway, as we read in this story.

Because federally certified unions have coercive power, that kind of union became the model that labor flocked to. Win certification and you’re set: employees can’t stop paying dues (except in Right to Work states), you can compel the company or employing institution to bargain with you, and you can threaten to bring unfair labor practice charges if you don’t get at least some concessions. But unions shouldn’t have those powers and can exist without them.

So, if some or all of the members of Northwestern’s football team want to form a union, nothing is stopping them. Whether the university would meet and discuss matters of concern with them is an unknown. If not, the union would be free to excoriate the university in the media and the school would be equally free to explain why it declines to negotiate.

We might have a war of words, but whatever the result, it would not involve any government coercion. That’s the way free societies work.


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