Another Take on the NLRB's Punt

Yesterday, the sports law world experienced a temporary reprieve from Deflategate when the five-member National Labor Relations Board declined to assert jurisdiction in the Northwestern case, unceremoniously deflating the question of whether players at private universities have the right to unionize under the Wagner Act.  

One might question why a punt took so long.  To boot (so to speak), the now-vacated decision was almost certainly correct: unlike in the famous 2004 case involving Brown University graduate students, who were denied the right to unionize by the NLRB because they were students first, students playing football at almost any institution serious about football are, whether by choice or circumstance, athletes first and students second.  Indeed, athletes at universities governed by the Wagner Act should, in fact must, be allowed to unionize should they so choose, and any argument to the contrary is on the wrong side of history. 

With that said, one could argue that the notion of college athletes unionizing was always a bit absurd, and was the wrong way to go about achieving the laudable and necessary result of empowering players and achieving equanimity:

• First, the exact arguments made in favor of unionization would have given the IRS a strong basis to rule that the full amount of a grant-in-aid to a student-athlete, as opposed to just room and board, is includable in gross income and therefore taxable.  For tax purposes at least, unionized athletes receiving monies under the current grant-in-aid framework would have been much worse off than individuals simply attending on a non-athletic scholarship.  We will perhaps never know whether they could have “made up the difference” through collective bargaining, but I doubt it, given that NCAA regulations only allow so much leeway.  

• Second, athletes really serious about unionization would have flocked to private universities, or public universities in labor-friendly states (because the National Labor Relations Act, of course, only affects private institutions, and state institutions are dealt with under state law).  And then at those private institutions, making matters still more comical, the athletes would have a right that the faculty members lack — unionization (after all, the Supreme Court long ago held, in the NLRB v. Yeshiva University case, that full-time faculty members at private institutions are managerial and therefore cannot unionize).  So you would have the very jealousy and resentment that in some small way at least could be said to support the NCAA’s “argument” against paying athletes!  

• Third, and finally, a cynical person could even argue, perhaps convincingly, that the students were being “played” by the labor unions (going from being the pawns of the institutions to the pawns of the labor unions) if the unions trying to organize the students knew all these things to be true.  Unions serve incredibly valuable purposes, of course, but ultimately the unionization has to work for the members and not just the union itself.

Appellate experts are in agreement that the NLRB's declination of jurisdiction is essentially unappealable.  Maybe, in these unique circumstances, and at this unique point in time in the history of college athletic reform, that is a good thing.