4 Reasons Why NLRB reversal of Northwestern athletes forming a union made absolutely no sense

Northwestern quarterback Kain Colter, who has lead the fight to unionize college athletes. (AP Photo/Paul Beaty)

Northwestern quarterback Kain Colter, who has lead the fight to unionize college athletes. (AP Photo/Paul Beaty)

The National Labor and Relations Board (NLRB) is in the business of keeping the status quo.

Initially, the NLRB ruled Northwestern players can become unions just over a year ago.

Here are 4 reasons why the reversal made zero sense at all:

1.  NLRB failed to address the central question brought before it.
The full NLRB reversed course without any solid legal rationale why, and, decided to remove itself from jurisdiction in the process. It took quite a long time to come back with “nothing to see here.”

The NLRB decided not to even take on the rudimentary question as to whether Northwestern players were employees under the common law definition of the term, a basic distinction I’ve discussed is as simple as A, B, C (Access, Benefit, Control).

2. The difficultly in administering change is not a solid legal rationale.

The NLRB held that “[b]ecause of the nature of sports leagues … and the composition and structure of FBS football … it would not promote stability in labor relations to assert jurisdiction in this case.”

We’ve already seen a stay in paying players under the Ed O’Bannon ruling recently.

The NLRB basically decided “how it has always been done” is essentially a more important question than the actual arguments brought to it by the parties involved.

3. NLRB thinks the Northwestern case is one they have never seen before, when it has.

The NLRB went on to stress “this case involves novel and unique circumstances” because “[t]here has never been a petition for representation before the Board in a unit of a single college team, or, for that matter, a group of college teams.”

The determination of who is, and who is not an employee and who is, and who isn’t an employer is a basic question presented before the board since it was first formed. The uniqueness of a potential labor/employee relationship should not prevent the NLRB from acting and asserting jurisdiction.

4. NLRB uses rationale for matters outside of jurisdiction of ruling on matters in its jurisdiction.

The NLRB’s most glaring error was born of the statement “[b]ecause most FBS teams are created by state institutions, they may be subject to state labor laws governing public employees [and] some states … limit of prohibit [athletes’] bargaining.”

The NLRB governs private employers. The complex question of how that impacts state institutions was not a question put before the NLRB, and it was not in their jurisdiction to decide public employment.

The question of what an Alabama or Ohio State might do and the FBS as a whole was not a question before the NLRB, yet the NLRB decided to address it anyway.

Bottom Line

The NLRB had one job, and that was whether under the circumstances Northwestern student athletes playing for a private institution, Northwestern University, were employees per the National Labor Relations Act.

The NLRB took its sweet time and came up with an opinion without rhyme, reason, or relevance.

The NLRB may have been deciding on Northwestern, but fundamentally went in all different directions in a faulty ruling that is bound to be challenged.

Exavier B. Pope I, Esq. is an award winning attorney, on air legal analyst, media personality, and Fortune 500 speaker. Mr. Pope has over 200+ appearances on air, including: international television on BBC and Al Jazeera English; national television on Fox News Channel, HLN, NBC Nightly News, Al Jazeera America, WGN Morning News, Fox Business Channel, and Huff Post Live; Top 3 Local Media Markets on Fox, CBS, and NBC; international radio on BBC Radio; national radio on ESPN Radio, Clear Channel Radio, NBC Sports Radio; contributed digitally to CNBC, Huffington Post, Jet, and Black Enterprise; and has appeared in other media outlets nationally and internationally. Mr. Pope is represented by top media and literary agency RLR Associates. All opinions expressed are those solely of Mr. Pope.

© 2015, Exavier B. Pope I, Esq.

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Categories: #SuitUP

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2 replies

  1. Reblogged this on WARR – We Are Regal Radio and commented:
    Exavier Pope offers a solid breakdown of how and why the NU ruling is an unfortunate development.

    Liked by 1 person


  1. College Football is Back! 4 Whats to Turn Down for | EXAVIER B. POPE I, ESQ.

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