Depending on your allegiance, “the Play” was one of either the most memorable or the most infamous moments in the history of college football. It happened in the final seconds of 1982’s annual “Big Game” between the Stanford Cardinal and U.C. Berkeley’s Golden Bears. As the fourth quarter was winding down, the Bears had taken a 19-17 lead over the Cardinal, but Stanford quarterback John Elway would have none of it: he overcame a dire 4th-and-17 and drove the Cardinal into field goal range. The field goal was good, giving Stanford a 20-19 lead with just seconds left in the game. As Stanford prepared to kick off, Cal announcer Joe Starkey observed, presciently, that “only a miracle can save the Bears now!”

The Bears were in for a miracle. Following a short “squib” kick and a bit of scrambling, the Bears picked up the ball and began to run. In an ocean of white Stanford jerseys, the Bears avoided a game-ending tackle by lateralling the ball… and then lateralling it again, and again, and again, and again. To Stanford’s ragtag marching band, it seemed clear by the third lateral that Cal’s ball-carrier had been tackled, so they rushed the field and began celebrating. But the play was still live, and the Bears continued to drive the ball downfield. As he rushed into the end zone, Cal’s ball-carrier flattened an unwary Stanford trombone player and secured a 25-20 victory for the Bears. Stanford was stunned.

On Monday, another miracle rocked the worlds of both college football and labor law, although, like the Play, its “miraculousness” may depend on your point of view. The NLRB unanimously rejected a union representation petition filed by Northwestern University’s grant-in-aid scholarship football players. Like the Bears’ last-second heroics during the Play, the NLRB’s decision was a shock to most observers. As we’ve previously observed, the NLRB has aggressively asserted that its authority reaches beyond “traditional” unionized workplaces, and many experts predicted that this case would be the latest example of that trend.

Indeed, before the NLRB issued its decision, the football players had prevailed before the Board’s Regional Director in Chicago. The players filed a petition in early 2014 seeking representation by the College Athletes Players Association for the purpose of collective bargaining. The University tried to block the petition by arguing that the scholarship players were not “statutory employees” under Section 2(3) of the National Labor Relations Act (NLRA). The Regional Director disagreed and directed an election, but the University requested review by the full Board.

The question was hotly debated, and the Board accepted no fewer than 100 amicus briefs, many of which vigorously argued for employee status, based on the following:

  • Scholarship athletes received “payment for services, consistent with employee status.”
  • Football players’ time commitment to their sport was like a full-time job.
  • Players are recruited for their “football prowess” and not because of their academic achievement in school.
  • The common law test of employee status should be applied to the athletes, and because the university and its athletic program exercise control over the football players’ every move, they were employees.
  • The revenues and expenses generated by Northwestern’s football program through ticket sales, television broadcast contracts, and merchandise sales creates a significant “profit” over the cost of stadium maintenance and football players’ “salaries.”

Those opposed argued that the “overall relationship” between Northwestern and its football players was “primarily educational, not economic,” so the football players were not employees. They urged the Board to decide this case consistent with its 2004 decision in Brown University, 342 N.L.R.B. 483, which held that a university’s graduate teaching assistants were “predominantly students” and not employees.

In the end, the Board skirted the issue altogether and—instead of making a decision based on whether the players were “employees” in the first place—simply declined to exercise jurisdiction and dismissed the petition. The Board held only that “asserting jurisdiction in this case would not effectuate the policies of the NLRA to promote stability in labor relations.” (The Board has discretion to decline jurisdiction where, in the Board’s opinion, a matter before it is not “sufficiently substantial” to warrant its involvement.) Why did the Board reach that conclusion? Because the overwhelming majority of NCAA Division I teams (108 out of 125) played for public colleges and universities, and the Board has no jurisdiction over those “employers.” Tellingly, every school in the Big Ten (Northwestern’s “conference”) except Northwestern itself is a state-run institution.

The legality of the Play still is hotly contested; many fans believe the Cal player’s knee touched the field before the third lateral (i.e., that Stanford had effectively tackled him), and that the fifth lateral amounted to an illegal forward pass. The same will be true of the Board’s decision here: the Board emphasized that this case involved “novel circumstances,” that its decision was based on the “unique facts of the case,” and that the decision “does not preclude reconsideration of this issue in the future.” In other words, the battle for college scholarship athletes’ status as “employees” of their teams, and their eventual union representation, is far from over.

The case is Northwestern University, 362 NLRB No. 167 (2015), and is available here.