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2016 Presidential Race Begins to Loom in Union Fight

Northwestern’s football team got the union vote of its plate yesterday, which means now attention turns back to the National Labor Relations Board. The day before the vote, the NLRB agreed to hear Northwestern’s appeal, meaning the votes cast by the players will be impounded and not counted unless that appeal is unsuccessful. While that could take months, some experts agree it may be something of a formality:

Numerous labor experts and law professors agree that they expect the board to agree with Peter Sung Ohr’s ruling that the players are employees and entitled to form a union. President Barack Obama’s three appointments to the board are pro-union and are expected to support a campaign that has been supported by the United Steelworkers.

But the players victory could be short-lived and the mention of President Obama’s appointments to the board highlight one of the next significant events in the college athlete union fight: the 2016 presidential election.

Unions and labor rights have produced bitterly partisan political fights, and the effect is clearly shown with a group making similar arguments as the College Athletes Players Association and other athlete advocacy groups. One of the most notable features of the fight by graduate teaching and research assistants to unionize has been the effect of shifting political winds.

In the year 2000, at the tail end of the Clinton administration, students at NYU won recognition as employees and the right to unionize. But in 2004, as the membership of the NLRB board shifted with President George W. Bush’s appointments, Brown University won a decision reversing the victory by the NYU graduate students. But in 2011, after Democrats once more took control of the NLRB under President Obama, the momentum shifted back to the NYU students who won a regional decision criticizing (but not overturning) the Brown decision. In 2012 the NLRB agreed to hear the students’ appeal of that decision and reconsider the Brown ruling in a 3–1 decision. The lone member voting against hearing the appeal theorized why the Brown case was being challenged:

A dissent by Brian E. Hayes said that the only real change since the Brown decision was “a change in the board’s membership.”

The union won the first round of argument and seems likely to win the next. But even if the players voted in favor of unionization, which sounds unlikely, it could be stopped in its tracks before it even really gets started. Northwestern will refuse to bargain with the union in order to trigger a claim of unfair labor practice that leads to judicial review of the decision. Between the expected delay in the decision by the NLRB and a lengthy court proceeding, it could be years before CAPA and Northwestern ever sat down in a real bargaining session.

By that time, the NLRB could have shifted away from its current pro-labor stance under a Republican president, leading to another round of appeals and ruling that end up with a decision that college athletes are not employees.

CAPA was always going to have a political fight on its hands to establish unions at public institutions, particularly in states with a bias against unions. But a more significant political outcome might end up washing away this win as well. The NCAA and college athlete unions are unlikely to be a major issue in the 2016 election, but the result could still have a major impact on reform efforts. At least until 2020.

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