Alan Fanger: ‘Shocked, Perplexed By Northwestern Ruling’

In a surprising move, the National Labor Relations Board has dismissed a request by Northwestern football players to unionize. The unanimous ruling, handed down Monday, opposed the movement to allow college players to collectively bargain.

If you saw this coming, well, kudos – because many did not.

“I was stunned by this decision,” Boston-area trial attorney and sports legal analyst Alan Fanger said on CBS Sports Radio’s The DA Show. “In fact, it was almost an afterthought that this issue of jurisdiction came up. I believe it was mentioned in a footnote in Northwestern’s brief to the NLRB. So that tells you that this was really the legal equivalent of putting up a three-pointer, with hopes that somehow the board would bite into it. And it turns out – wouldn’t you know it – that this was the actual basis for the decision. I have to say I’m totally perplexed. I only hope that the players will take an appeal from the decision because I think they do have some chance on appeal.”

In March 2014, a regional NLRB authority said that Northwestern scholarship football players were essentially university employees, and thus, had a right to unionize. Almost a year-and-a-half later, however, the board decided that such a ruling could cause unstable labor relations.

“I was perplexed because the board invoked this lack of jurisdiction basis, which is invoked so rarely,” he said. “When I say rarely, I mean once every five or 10 years in the hundreds of decisions that the board might render in any particular year. Administrative agencies are just not big on declining to exercise their own authority, and they do so in very limited circumstances. And here, the board basically took the position that, well, there are 108 out of the 125 schools in the FBS that are state-run schools, that they have no authority to regulate. State public employees’ labor relations are governed by each state’s law. So what they said was, ‘Well, if we establish a precedent here with the Northwestern players, we’re really going to affect only 17 out of 125 schools. Aand if we decide to take jurisdiction and make a ruling that these players are actually employees, there’s no guarantee that the other 117 schools are going to follow suit, and we’re going to create a chaotic situation where the Northwestern players could be employees and so many other teams’ players won’t be employees. So given that we have no control over that circumstance, we don’t want to inject ourselves into regulating something that is so far out of our control.’ So they essentially, for lack of a better term – or at the risk of a pun here – they punted.”

In other words, the board did not rule on the basis or right or wrong; it ruled on not wanting to get in the middle of this maelstrom because it couldn’t fully control the outcome.

“That’s exactly right,” Fanger said. “The problem I have with it is that’s not really a legitimate basis for what’s holding your authority. The very law itself limits the reasons that the board can use to not take jurisdiction over a matter, and the National Labor Relations Act, which created the NLRB, says that the board can decline jurisdiction only when the dispute at issue does not sufficiently affect commerce. The problem is that this issue, this dispute, did affect commerce – perhaps too much so for the board’s own comfort. So if I’m the players, what I’m thinking about doing here is going to the U.S. District Court – or the District of Columbia – and saying, ‘Your honors, the board was required to take jurisdiction over this. It had no basis for declining it because Congress places a limit on the reasons that the Board can decline to (provide jurisdiction). And this did not fall within those reasons.’ I think they’d have a shot.”

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