The National Labor Relations Board on Monday unanimously declined to exercise jurisdiction over the petition filed by Northwestern University grant-in-aid football players seeking representation by the College Athletes Players Association for the purpose of collective bargaining. The Regional Director for Region 13 (Chicago) previously had found that the football players were statutory employees under the NLRA, thus warranting the direction of a representation election. On appeal of the Regional Director’s decision, the Board did not rule that the football players were not employees. Instead, it simply declined to exercise jurisdiction. There were two primary bases for the decision, one of which was that the overwhelming majority of competitors in FBS Division 1 football are public colleges and universities over which the Board has no jurisdiction. Public employers are not under the jurisdiction of the NLRB, rather they would be subject to particular state public sector labor acts. Asserting jurisdiction over players at a single private university, the Board said, would have consequences for competitors not subject to Board jurisdiction. The NLRA provides no mechanism for appeal of the exercise of the Board’s statutory discretion to decline to exercise jurisdiction.
It will be interesting to see how the College Athletes Players Association will react to this set back. It is a reminder of the important lesson to always examine whether the claimants in any matter have petitioned for relief in the right place. Sometimes it’s the most basic arguments that can resolve a case.
