A National Labor Relations Board hearing officer Wednesday found that Northwestern football players who receive scholarships are university employees and may unionize. The ruling may be groundbreaking, but we are a long way from breaking ground on a union hall adjacent to the Nicolet Football Center.
For one thing, hearing officers, also called administrative law judges, don't have the last word. They have the first word. Anyone who can identify the doink-doink of Law & Order has heard the legal clichè that a prosecutor can indict a ham sandwich. What hearing officers do is akin to certifying a class in a class-action lawsuit. Now the game begins.
As my colleague Lester Munson detailed, administrative law judge Peter Sung Ohr believes that the former Northwestern quarterback Kain Colter and the sundry current Wildcats who want to unionize have a good case. However, Northwestern already has said it plans to take the case to the entire NLRB.
For another, this decision would set aside a stack of case law in which courts have ruled that student-athletes are not employees. It would be a momentous undertaking for the executive branch (NLRB) to set aside the judicial. If that happens, surely Northwestern will take its case back to the courts, where that case law may have more sway.
And even if the courts reverse the case law and rule that the players may unionize, thus changing the character of intercollegiate athletics, don't you think that the legislative branch (Congress) would join the fun?
So nothing is going to happen for a long time.
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