NLRB counsel: Football players at private FBS schools are employees
The NLRB's general counsel said athletes are employees according to the National Labor Relations Act
Football players at private universities who compete at the NCAA's highest level are employees and entitled to protection from unfair labor practices, the National Labor Relations Board's general counsel stated this week.
Richard Griffin, the NLRB's general counsel, sent a memo Tuesday to the board's regional directors stating that Football Bowl Subdivision football players are employees under the National Labor Relations Act because "they perform services for their college and the NCAA, subject to their control, in return for compensation." While this opinion does not carry the weight of the full board, it could open the door for future labor complaints on behalf of football players at the 17 FBS private universities.
"I think it's significant and an invitation to players that if they want to file unfair labor practices to protect their rights, the NLRB regional offices will accept the charges," said John Adam, the attorney in a Northwestern football case that raised this issue. "It's not the end of it, obviously. Ultimately, the board will decide if a charge is filed and the courts get a chance to review it."
According to Griffin, the memo was sent to clarify the unanswered question about whether Northwestern football players are employees. In 2015, the NLRB's five-member board ruled that Northwestern players could not try to unionize because doing so would create chaos for public and private universities. The NLRB only governs private employers and their employees, and has no power over public universities.
But the NLRB punted on the question about whether the Northwestern players are employees who have the right to be protected from retaliation.
"Scholarship football players should be protected [by the NLRA] when they act concertedly to speak out about aspects of their terms and conditions of employment," Griffin wrote. "This includes, for example, any actions to: advocate for greater protections against concussive head trauma and unsafe practice methods, reform NCAA rules so that football players can share in the profit derived from their talents, or self-organize, regardless of whether the Board ultimately certifies the bargaining unit."
The NCAA pushed back on the relevance of the general counsel's memo, which was first reported by Inside Higher Education.
"The general counsel's memo and personal opinion do not reflect a binding position of the NLRB," NCAA chief legal officer Donald Remy said in a statement. "As we have stated before and he was obligated to acknowledge, the NLRB previously decided that it would not exercise jurisdiction regarding the employment context of student-athletes and their schools. The general counsel's memo does not change that decision and does not allow student-athletes to unionize. Students who participate in college athletics are students, not employees.
"Recently, a United States Court of Appeals confirmed that fact. Any distinction by sport or division misunderstands the student-athlete experience. We, along with our member schools, will continue to provide the best support possible for all college athletes."
Federal courts have shied away from identifying NCAA athletes as employees. In January, the Seventh Circuit Court of Appeals affirmed an Indiana federal court's dismissal of a case by University of Pennsylvania track and field athletes, who claimed they were entitled to compensation as employees under the Fair Labor Standards Act. The majority opinion concluded that college athletes have no more right to ask whether they might be employees than inmates who are in prisons.
Griffin acknowledged his memo can't and shouldn't resolve "divisive" questions about whether football players should be treated differently than "equally committed" athletes in non-revenue sports. Griffin said he wants the NLRB's prosecutorial position known so private universities comply with their obligations. Without a full investigation of future complaints, "we cannot conclusively determine the employee status of other kinds of student athletes in cases that may arise in the future," Griffin wrote.
Last year, in response to a complaint from a California labor lawyer that Northwestern was guilty of unfair labor practices, the NLRB issued an advice memo for Northwestern over some of its policies. The NLRB dismissed the charges after Northwestern changed rules for players related to social media, media interviews and discussing health and safety issues.
In this week's memo, Griffin concluded that a scholarship for football players equates to compensation for playing. "The players' compensation is clearly tied to their status and performance as football players, since they risk the loss of their scholarships if they quit the team or are removed because they violate their school's or the NCAA's rules," he wrote.
Griffin cited a 2016 NCAA study showing football players report a median of 42 hours per week on football-related activities during the season, more than any other sport. The five major NCAA conferences passed legislation last month they say will lighten the time demands for athletes. Griffin identified several ways he believes schools control scholarship football players that resemble an employment relationship:
- Daily itineraries that regulate players' hourly tasks.
- Players need to retain certain grades while football activities interfere with classes.
- Coaches can penalize players, "including firing them from the football team resulting in the loss of their scholarships."
- Football players are required to seek permission before living off campus, applying for outside employment, driving personal vehicles, traveling off campus and posting items on the internet.
What the opinion can't say is the makeup of the general counsel and board members for the NLRB moving forward. The four-year term of Griffin, who was appointed by former President Barack Obama, expires in November.
Three of the five sitting board members are from the Democratic majority. They have staggered five-year terms and President Donald Trump will eventually appoint the majority of the board.
For now, Griffin's opinion means any interested party could bring unfair labor practice charges to the NLRB about private football players. A union or interested group can file charges with evidence, and it doesn't necessarily have to be a specific player, Adam said.
"If it's a school or team rule, you might not need testimony from players," Adam said. "But that's obviously the easiest way to do it."
College Athletes Players Association director Ramogi Huma, who helped organize the Northwestern union attempt, said the memo shows athletes have rights they can assert.
"They can reach out to us. There's options at this point," Huma said. "One hurdle is that most players have no idea whether or not their school is violating labor law. But it doesn't hurt to ask. It doesn't hurt to reach out and see if they're being treated fairly under the labor law."
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