Doubts About a Union for College Football: Part III

Earlier, we discussed how the fragmentation of labor laws poses a large obstacle to having real collective bargaining in college football. However, CAPA’s lead attorney has an intriguing solution: Add the NCAA as a “joint employer” under NLRA case law, and then every D-I school comes under the NLRB’s jurisdiction (because the NCAA is a private organization). This idea has serious shortcomings, even if the NLRB rules that student-athletes are “employees,” and even if a federal appeals court upholds this ruling. 1. The NLRB is already pushing the joint employer doctrine in a new area, the franchisor-franchisee relationship (McDonalds). They’ll need to hit a home run in federal court to make that idea stick. Apply it also to college football? It’s very doubtful the federal courts will let the NLRB run wild with its joint employer concept. 2. Reinforcing Point 1, federal courts deny enforcement to more than 30% of NLRB orders, especially those that seem political or controversial. 3. Even if the NLRB manages to run the table before the NLRB and federal courts—long shot there— the biggest football conferences and programs already are looking into breaking from the NCAA and forming their own league. If they do this, the NLRB and CAPA will have lots of court rulings that apply to the NCAA, but not a newly minted organization. The litigation cycle, which is notoriously slow, will need to start all over.