Understanding the NLRB Ruling

The NLRB's decision that Northwestern football players can unionize is a step in the right direction, but this case is just beginning to play out. (USA TODAY Sports)

The NLRB's decision that Northwestern football players can unionize is a step in the right direction, but this case is just beginning to play out. (USA TODAY Sports)

Peter Sung Ohr, the director of Region 13 of the National Labor Review Board, ruled on Wednesday that Northwestern football players are employees of the university and therefore have the right to unionize, should they choose to do so. Ohr cited the tremendous amount of income ($235 million) Northwestern football has generated over the past nine seasons and the level of control coaches have over the lives of players as foundational elements of his decision. This is a step in the right direction for those who believe college athletes in revenue-generating sports should get a slice of the pie, but there’s still a lot that needs to happen between the present and a now-foreseeable future where a Northwestern football player — or any scholarship athlete, for that matter — has the same rights as a biology professor. Here are some things you should know about what this all means.

1. This decision is going to be appealed. Ohr’s opinion is actually detailed in a way that anticipates an appeal. The way this process works is the case will move to the national level in Washington, where a three-person board will look over what Ohr wrote and debate its legal merits before deciding whether Ohr was correct or not. According to ESPN legal expert Lester Munson, Northwestern is going to have a tough time winning this appeal because of both Ohr’s fastidiousness and the fact that the board will consist of three members appointed by President Obama, who are, in a vacuum, more sympathetic to labor than management.

2. The NU players’ demands are far from radical. They’re asking to be able to unionize so they can negotiate guaranteed scholarships, a fund that helps players graduate and improved healthcare. The players are being smart about learning to crawl before they try to walk. They understand this case is going to be a stepping stone toward larger gains in the future.

3. Unionizing athletes at public universities is going to be a separate battle. Because schools like Ohio State and UCLA are overseen by state governments — and their employees are employees of the state — establishing players’ unions at those sorts of institutions is tricky because different states have different laws about dealing with unions. The Northwestern ruling, if it holds up through the appeals process, would technically set a precedent only for college athlete unionization at private schools, but players at state schools, if and when they pursue unionization, will benefit from the persuasive weight of a decision in favor of the Northwestern players.

4. The NCAA is being difficult about this. Shocking, right? Their brief press release on this decision contains the following sentence: “We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid.” So, you know that “amateurism is pure and holy” drum the NCAA has been banging for the past eternity? They’re not putting it in storage any time soon. It remains to be seen when the NCAA will jump in on this process — remember, this is still technically a dispute between Northwestern and its football players, even if it does have far-reaching implications — but they might have an opportunity during this upcoming round of appeals. Amicus briefs (layman’s terms: arguments from parties not directly involved in the case) could be accepted by the three-person board. It’s up to the board, though, and the NCAA might wait to weigh in on this issue in a different case or just later in the process of this one.

5. This is just the beginning. After the three-person board takes a look at Ohr’s decision and delivers their ruling on it, either party can take the case to the US Court of Appeals. (This is their right; they don’t need to do anything besides state their intent to appeal.) The only court higher than the Court of Appeals is the Supreme Court, which only hears a fraction of the appeal requests it receives. If you think of the legal system like a water slide — and you should; it makes it seem more fun — this case is only about a third of the way down. It may filter through relatively quickly or at a snail’s pace, but there’s a significant length of tubage left to navigate.

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