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College football players' union efforts likely sacked for good

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The National Labor Relations Board's decision to dismiss a petition by Northwestern University football players to unionize and sidestep the issue of whether they are employees thwarts the potential for similar action by other private school scholarship athletes, legal experts say.

The five-member board on Monday declined to assert jurisdiction in the case and did not decide if the players were employees under the National Labor Relations Act, saying that doing so for a single institution “would not promote stability in labor relations,” according to the 19-page ruling.

The decision overturns a landmark March 2014 ruling by a NLRB regional director in Chicago that scholarship football players at Evanston, Illinois-based Northwestern were indeed employees of the university and could decide whether to unionize.

Though the NLRB emphasized in a statement Monday that the decision applies only to the Northwestern players in the case and “does not preclude reconsideration of this issue in the future,” there is no potential for an appeal, and legal experts don't anticipate further action.

“This is really now a dead issue,” said James Sconzo, a shareholder at law firm Carlton Fields Jorden Burt in Hartford, Connecticut, adding that the decision wasn't surprising.

“Theoretically, public university students could try to make a similar argument at various state levels,” Mr. Sconzo said, “but I don't see that gaining any traction, so I think we've seen the end of this argument.”

“I think they made it fairly clear that they are unlikely to come to a different conclusion with a one-off case involving a private college or university,” said Brad Livingston, Chicago-based partner with Seyfarth Shaw L.L.P.

Mr. Livingston said it's “conceivable” that multiple private schools could band together to file a petition, but then there's the question of how they would claim commonality and if they could be seen as having a single employer.

“The NLRB was very clear to leave the door open, but I don't see anything in the near term that would change the result,” he said.

Had the NLRB granted Northwestern's scholarship players the right to bargain collectively as a union, the implications for employee benefits and workers compensation would have been significant.

The players “would have been entitled to the full panoply of employee benefits that were provided to similar employees at the university,” Mr. Sconzo said. That could include the retirement plan, health plan, disability plan, unemployment benefits and workers comp, he said.

The case began in January 2014, when 85 Northwestern grant-in-aid scholarship football players filed a petition seeking the right to form a union. Northwestern University protested, arguing that the players are temporary employees who are not eligible for collective bargaining.

And in March 2014, NLRB Regional Director Peter Sung Ohr ruled the scholarship players were employees and could vote to unionize. The ruling directed the players to hold a secret ballot election to determine whether they would be represented under the College Athletes Players Association.

Those ballots, which were impounded pending Monday's ruling, will not be counted and will be destroyed, according to an NLRB spokeswoman.

In a statement Monday, Ramogi Huma, president of the College Athletes Players Association, said the decision is “not a loss, but it is a loss of time. It delays players securing the leverage they need to protect themselves from traumatic brain injury, sports-related medical expenses, and other gaps in protections.”

Meanwhile the National Collegiate Athletic Association called the decision “appropriate” in a separate statement released Monday.

“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,” the NCAA said.

In another statement, Northwestern said Monday it applauds the players for bringing attention to various issues, but “unionization and collective bargaining are not the appropriate methods to address the concerns.”