Will College Athletes’ Labor Rights Follow Grad Student Ruling?

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By Lawrence E. Dubé

Sept. 23 — Did a recent National Labor Relations board decision on graduate assistants move the ball for college athletes' unionization rights?

The board held Aug. 23 that graduate research assistants at Columbia University are employees who have a right to vote on whether they want to be represented by a labor union for purposes of bargaining with the university ( Columbia Univ., 364 N.L.R.B. No. 90, 207 LRRM 1089, 8/23/16).

But the board ruled a year earlier that scholarship football players putting in long hours and receiving substantial benefits at Northwestern University couldn’t vote on representation by a players’ association there.

So did the Columbia ruling change anything for college athletics?

“Yes, but mostly no,” said César F. Rosado Marzán, an associate professor of law at Chicago-Kent College of Law who teaches labor and employment law. He told Bloomberg BNA Sept. 21 the Columbia ruling “cleared up” the employee status of some student workers but steered clear of the dispute over college athletics.

Mark J. Neuberger, a management-side employment lawyer in Foley & Lardner LLP’s Miami office, told Bloomberg BNA Sept. 22 that “for now,” student-athletes aren’t considered employees under the National Labor Relations Act, but he expects a continuing debate about the rights of athletes and their status under the NLRA.

NLRB Shift on Graduate Assistants

The NLRB has grappled several times with the issue of whether students receiving compensation or things of value from a university should be considered employees under the NLRA.

In New York University, 332 N.L.R.B. 1205, 165 LRRM 1241 (2000), the board held that graduate assistants were statutory employees.

Four years later, in Brown University, 342 N.L.R.B. 483, 175 LRRM 1089 (2004), the board held that NYU was “wrongly decided.” The Brown board ruled 3-2 that the “underlying fundamental premise of the Act” was to cover “economic relationships,” not student relationships with academic institutions.

For that reason, the board held in Brown that it wouldn’t assert jurisdiction over work relationships that were “primarily educational.”

End Run in Northwestern Case

Although Brown was frequently criticized by unions and student organizations, the decision represented board law in March 2014 when an NLRB regional director in Chicago issued a lengthy decision directing that Northwestern University’s scholarship football players be allowed to vote on whether to be represented by a union.

The regional director concluded that “players receiving scholarships to perform football-related services for the Employer under a contract for hire in return for compensation are subject to the Employer’s control, and are therefore employees within the meaning of the Act.”

Northwestern petitioned for board review of the decision, and the board invited briefs on a number of legal issues, including whether the NLRB should “modify, or overrule the test of employee status” the board applied in Brown.

However, the board disposed of the Northwestern case without resolving whether the football players were employees under the NLRA ( Northwestern Univ., 362 N.L.R.B. No. 167, 204 LRRM 1001 (2015)).

The board found it would be difficult for the labor organization that sought to represent the players, the College Athletes Players Association, to bargain with Northwestern about standards set or controlled by the National Collegiate Athletic Association—the main governing body for college sports—or athletic conferences and organizations.

Certifying a union for the student-athletes at Northwestern wouldn’t fulfill the NLRA’s objective of promoting uniformity and stability in labor relations, the board ruled.

The board cautioned that future NCAA action or other changes in the treatment of college athletes could change the board’s view and said dismissing the Northwestern case “does not preclude a reconsideration of this issue in the future.”

Columbia Clear on Employee Status

In Columbia University, the board directly confronted the issue of whether graduate student assistants are employees within the meaning of the NLRA. The answer: yes, by a 3-1 vote.

Overruling Brown, the board said the statute broadly defines an “employee” in Section 2(3) without any express or apparent exception for students or other employees of private universities.

The board said it would no longer deny statutory protection to common law employees of private universities on the basis that their relationship is primarily educational.

“We overrule Brown University and hold that student assistants who have a common-law relationship with their university are statutory employees entitled to the protection of the Act,” the NLRB said.

More Tests Possible After Latest Ruling

Chicago-Kent College of Law’s Rosado Marzán wrote a law journal article about Northwestern and filed an amicus brief in the case for a group of labor law scholars.

The law professor told Bloomberg BNA he thinks that if board members apply the new Columbia decision to athletes such as the Northwestern football players, they will find the players are employees under the NLRA.

Columbia doesn’t address the board’s reluctance to assert jurisdiction in a situation in which organizations outside a single university control major issues of concern to scholarship athletes, but Rosado Marzán said the issue of employee status may arise in another context.

The law professor observed that the NLRA protects not only the right of employees to unionize but also their right to engage in concerted activities for their mutual aid or protection.

If scholarship athletes allege they were punished for participating in a group protest of working conditions that were controlled by their university, rather than by an outside sports federation, the NLRB could be presented with an issue of employee status unaffected by the complexity of outside regulation or control.

Rosado Marzán suggested that college players kneeling at a sports event to protest racial discrimination in employment on campus could raise the issue. Simply complaining about locker room facilities also could be protected activity under the NLRA, and retaliation by a university supervisor could trigger an NLRB filing that would allow the board to apply Columbia to athletes, the professor said.

‘Evolutionary Process’ in Motion

Neuberger, who serves as of counsel to Foley & Lardner, represents management in employment disputes including collective bargaining and NLRB proceedings.

Neuberger told Bloomberg BNA Sept. 22 that the board’s Columbia University ruling “starts an evolutionary process” of refining the board’s approach to various student categories.

The board is already dealing with adjunct faculty members at private universities, but it may also eventually have to deal with cases involving work-study students and student-athletes.

The Northwestern case drew a lot of public attention. Neuberger said the board may have been concerned about the possibility of “political kickback” if it asserted jurisdiction.

The “bigger issue” in college athletics—one that has been raised in labor and antitrust litigation and debates about the right to use images of team members—is fairness to the student-athletes, Neuberger said.

The board’s Northwestern decision delayed a ruling on the employee status of athletes under the NLRA, and Neuberger said that gave the NCAA time to follow up on complaints about the treatment of students in organized athletics.

Neuberger agreed the board may have to revisit the employee status of student-athletes in a case alleging a single university committed an unfair labor practice.

“In the right circumstances,” he said, “sympathies would line up with the players rather than the universities.”

However, Neuberger said he continues to think collective bargaining for student players would “ruin NCAA athletics as we know it.” There is already public concern about the influence of money in college sports, he said, and union representation and collective bargaining “would just make it worse.”

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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