NLRB 'further clutters a clouded national discussion' in dismissal of Northwestern union

Technically, the National Labor Relations Board is right.

In its "ruling" that dismissed the College Athletes Players Association, the NLRB didn't rule, which is technically by the book. The board members can make that non-decision and move on with their days, according to Supreme Court precedent.

At first glance, the lack of a decision that led to the dismissal of the Northwestern football players' union petition could be seen as a total and utter victory for the NCAA and its burning desire to maintain the status quo. In actuality, though, the board's opinion further clutters a clouded national discussion about the relationship between major college athletics and academic institutions.

Like a microcosm of the institution it was asked to make a decision on, the NLRB's seven-page explanation was filled with contradicting notions and paradoxes that led to the final conclusion: things are okay the way they are, so there's no need to change them; and even if things weren't okay — which they may not be — it definitely isn't our job to change them.

The issue here isn't a matter of whether a players union and collective bargaining would be a good or bad thing for college sports. Both sides of that argument have fair, intelligent opinions on the potential adequacy of a union in college athletics.

This is more so a matter of missing an opportunity to push major college sports a little closer toward moving out of the limbo — the state of instability — in which it currently resides. A ruling in favor of the union or against it would have done the trick. But neither route was taken.

"Our decision is primarily premised on a finding that, because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and 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), it would not promote stability in labor relations to assert jurisdiction in this case," the Board states.

Essentially, the labor board's main reason for not ruling on the matter is a genuine critique of the institution (the NCAA) that praised the non-ruling. In an opinion that anti-union supporters heralded as a major victory for the NCAA, it was the NCAA's flaws and disorganization (no uniform standards for members, private and public schools, conflicting regulations, lack of authority, etc.) that saved it.

As more and more money pours into college athletics — a phenomenon the NLRB spelled out in the document — the NCAA has become increasingly similar to a professional sports league in terms of revenue. "Not withstanding the dissimilarities, discussed above," the Board states, "FBS football does resemble a professional sport in a number of relevant ways." But the NCAA's organization remains archaic.

Further, the NCAA asserts that "this ruling allows us to continue to make progress for the college athlete without risking the instability to college sports that the NLRB recognized might occur under the labor petition."

But the NCAA failed to recognize that the current instability within the NCAA — not the instability that could be created by the "labor petition" — made it easy for the NLRB to punt on the current issue.

The complicated status of "student-athletes" within the context of both the academic and athletic worlds created a situation that allowed the NLRB to easily dismiss a ruling because "the scholarship players do not fit into any analytical framework that the Board has used in cases involving other types of students or athletes."

And, instead of trying to create a precedent, the Board decided to do nothing but let other organizations, probably Congress (the opinion repeatedly mentions a lack of Congressional direction on the issue), determine future outcomes. The Board didn't even overturn the notion that the scholarship football players at Northwestern are employees of the University.

As CAPA president Ramogi Huma pointed out in a statement, the opinion does not quash the movement toward the unionization of college athletes; it only quashes that of the Northwestern football players.

Even the NLRB opens the door for a more expansive movement when it writes, "we therefore do not address what the Board's approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities)."

Six times in the opinion, the NLRB wrote the phrase "stability in labor relations," asserting that a ruling on the case would not promote that stability, and thus the NLRB should not rule on the issue. If the NCAA really was stable, the NLRB would have just ruled against the Northwestern football players being employees of the University. But, obviously, the Board didn't do that. The NLRB wants to promote stability, but a lack of a ruling isn't making anything more stable.

All this non-decision does is push major college athletics further into a sea of questions, with no floatation device — not even the government agency responsible for resolving labor disputes — available to help.