Earlier this week, on August 17, the National Labor Relations Board (NLRB) issued a decision refusing to assert jurisdiction in the case of the Northwestern University grant-in-aid scholarship football players’ petition for an election seeking union representation. While this is a disappointment to those hoping that the Board would uphold the Regional Director’s ruling finding that the players are “employees” as defined by the National Labor Relations Act (NLRA), it is important to recognize the limited scope of the NLRB’s decision. The NLRB did not decide whether Northwestern football players – or whether any other college/university athletes – are “employees” under the NLRA. Instead, the NLRB exercised its power to decline jurisdiction, due to the “novel and unique circumstances” of this particular case.

The NLRB concluded that asserting jurisdiction over the Northwestern University scholarship football players would not promote “stability in labor relations.” The Board pointed to the contrast between this case, which involved unionizing a single football team, as opposed to the traditional approach to unionization of sports teams on a league-wide basis. The Board was also concerned with the complications of asserting its jurisdiction in this case, given the NCAA and the Big Ten conference’s substantial control over individual teams, which are mostly from public colleges and universities outside the NLRB’s jurisdiction.

What is the impact of the NLRB’s hands-off approach? It’s true that the Northwestern grant-in-aid scholarship football players’ petition for an NLRB-conducted election is now over. But it’s important to recognize the narrow scope of this decision not to assert jurisdiction. The Board explicitly limited its decision to the unusual circumstances of this case, avoiding broader questions involving the unionization of graduate students and others. In fact, much of the Board’s decision consisted of explanations of what the Board was not doing. Here’s a list of what the Board said it was not deciding in this case, with many points signaling future organizing potential by athletes and other groups in colleges and universities, including graduate student teaching and research assistants:

1. The Board explained that, in declining jurisdiction, it was not deciding the merits of the case. Thus, the Board did not reach a decision of whether the Northwestern scholarship football players were “employees” as defined by the NLRA.

2. The NLRB reiterated that it continues to follow its long line of precedents asserting jurisdiction over private colleges and universities as employers covered by the NLRA.

3. The NLRB emphasized that its decision is limited to this one case under these particular facts. The Board said it might assert jurisdiction in a future case dealing with the Northwestern scholarship players based on possible changes in NCAA Division I Football Bowl Subdivision (FBS) or in the university’s treatment of the players.

4. The Board stated that its decision declining jurisdiction in a single-team petition for an election should not be read as predicting how it would deal with a petition for an election covering FBS scholarship football players at all private colleges and universities.

5. The Board emphasized that it was not addressing the rights of other employees in college/university athletics, giving examples of NLRB cases “involving athletic coaches, college physical plant employees who performed functions in support of athletic events, and referees.”

6. The Board explained that its decision should not be read as signaling its views on the status of graduate student research and teaching assistants. “In discussing Brown University [dealing with graduate student assistants] . . . . we express no opinion as to whether those cases were correctly decided or whether they might be relevant to assessing whether the scholarship players are statutory employees. We observe only that the Board has never confronted a case involving students who are similarly situated to the scholarship players at issue in this case.”

So, what does the Board’s decision mean for organizing in private colleges and universities? The scholarship football players at Northwestern have already proven that with courage and creativity, people can organize to fight for fairness and equity for themselves and their allies. The players’ NLRB petition for an election was a long shot – and the potential for a positive outcome before the NLRB was always uncertain. But that’s different from the question of what the players accomplished. They showed the power of undergraduate students collectively raising their voices against exploitation by universities profiting from their labor. They have become allies in a labor movement fighting against inequalities and inequities, not just in wealth, but also in health, safety, and control over our work and our lives. Their struggle has already made a difference in the NCAA. As the Board noted, the NCAA reforms include allowing FSB teams to award guaranteed 4-year scholarships rather than 1-year renewable scholarships, and enabling scholarship players to receive an additional stipend.

Even without jurisdiction by the NLRB, the football players at Northwestern and other colleges/universities can and should continue to organize to assert their collective interests. The recent 50th anniversary of the Free Speech Movement reminds us that students have long organized at U.S. colleges/universities, calling for political and institutional change – including the need for democratic processes in universities. Out of that movement came the organizing drives by graduate student teaching and research assistants. And as the centennial of the AAUP reminds us, faculty have been organizing for the past 100 years.

At an earlier stage in the appeal in the Northwestern University case, the Board had issued an invitation to the public to file amicus briefs in the case, including briefs addressing the question of whether graduate student assistants are “employees” as defined by the NLRA. The AAUP filed an amicus brief arguing that the Board should hold that private college/university graduate student assistants are employees with rights to unionize, which would overrule the NLRB’s Brown University decision in 2004 that graduate student assistants are not “employees” under the NLRA. Although the NLRB decided not to address this question in Northwestern University, the Board will have the opportunity to do so as unions have continued to file petitions to represent graduate assistants under the NLRA. On July 30, 2015, based on seven days of hearing, a Regional Director of the NLRB issued a decision in The New School case, dismissing the UAW’s petition for an election, based on the Board’s decision in Brown. On August 13, 2015, the union appealed, requesting that the Board review the Regional Director’s decision and overrule Brown University.  The New School case, with its extensive factual record, provides an excellent opportunity for the Board to reconsider the Brown decision.

Where a union is supported by a majority of the individuals in a bargaining unit, the union usually asks the employer to voluntarily recognize and collectively bargain with the union. And employers usually say “no”, which the NLRA allows. But employers – including colleges and universities – could say “yes”. University/college administrations could voluntarily recognize and bargain with the union regardless of the employee status of graduate assistants (or other students or faculty) under the NLRA. Or the employer could agree to an election, as NYU did in 2013, in which the graduate assistants overwhelmingly voted in favor of the union.

College and university administrations have raised “academic freedom” objections to unionization by graduate assistants, faculty, and by the Northwestern football players. The AAUP amicus brief in Northwestern University took particular issue with this argument that academic freedom justified depriving graduate assistants of the right to unionize. As the AAUP brief argued:

“At its core, the Brown University test of employee status is based on an erroneous understanding of the relationship between academic freedom and collective bargaining. . . . Indeed, interim developments provide further support for the notion that collective bargaining is compatible with academic freedom. These include the NYU administration’s decision to voluntarily recognize its graduate assistant union and a new research study that is the first to provide a cross-campus comparison of how faculty-student relationships and academic freedom fare at unionized and non-unionized campuses.” [See Sean E. Rodgers, Adrienne E. Eaton, & Paula B. Voos, “Effects of Unionization on Graduate Student Employees: Student Relations, Academic Freedom, and Pay,” ILR REVIEW, Vol. 66, No. 2, 487-501 (2013)].

Academic freedom is also compatible with collective bargaining by faculty. As the AAUP stated in its amicus brief in the recent Pacific Lutheran University case before the NLRB, “Faculty rely on academic freedom as the term and condition of employment central to their ability to have autonomy and independence in their teaching and research, and in their collective influence on academic matters through governance bodies.”

Unionization under the NLRA has been blocked in many cases by the US Supreme Court’s 1980 Yeshiva University decision, finding that tenure-track/tenured faculty often have “managerial”, not “employee” status under the NLRA. The NLRB’s Pacific Lutheran University decision, in December 2014, creates standards for applying Yeshiva to hold employers to a high level of proof of managerial status. [361 NLRB No. 157 (2014)] This will certainly ease unionization by the growing numbers of non-tenure-track faculty. And it will likely open the door to greater unionization by tenure-track/tenured faculty in the age of corporatization and top-down management by the growing ranks of university administrators.

Regardless of the law, it still holds true that collective action is the best way for students and faculty to wield influence in colleges and universities – public or private. Today, collective action is crucial as a means to challenge corporatization, including increased top-down management and growing commercialization of teaching and research. The football players at Northwestern University understood this. We can all learn from them.