Scholarship Athletes Could Be Protected by Labor Law

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By Lawrence E. Dubé

Student athletes who perform services in exchange for scholarships may be protected by federal labor law, the National Labor Relations Board’s general counsel told agency employees.

The NLRB in 2015 dismissed a bid by Northwestern University football players for a vote on unionizing in Northwestern Univ., 362 N.L.R.B. No. 167, 204 LRRM 1001 (2015), but never decided whether the athletes were “employees” under the National Labor Relations Act.

The football players clearly satisfied the NLRA’s employee definition and they had a right to be protected against unfair labor practices, General Counsel Richard F. Griffin said Jan. 31 in Memorandum GC 17-01.

Griffin said he was making his position known “to assist private colleges and universities to comply with their obligations under the Act.”

Northwestern Ruling Denied Election

The College Athletes Players Association, in Northwestern, petitioned for an election among the university’s scholarship football players. The university resisted the union organizing effort and the board eventually voted 5-0 to dismiss the election petition.

The university, the union and a number of organizations filed amicus briefs that differed sharply on whether the players could be considered employees under the NLRA due to their student status and academic relationship with the university.

The board acknowledged that Northwestern paid its scholarship players as much as $76,000 per year for up to five years but the members declined to assert jurisdiction in the dispute. The board said “it would not promote stability in labor relations to assert jurisdiction in this case,” citing Northwestern’s inclusion in the NCAA Division I Football Bowl Subdivision where public universities are not covered by the NLRA.

Law May Still Protect Student Athletes

Northwestern and other recent board rulings were union representation cases that did not directly address the rights of university workers to be free of unfair labor practices, Griffin said. Accordingly, his office had begun to analyze how it would apply NLRB precedent in its investigation and prosecution of unfair labor practice charges, Griffin said.

The act’s statutory definition of covered employment is expressed in “expansive language and purpose,” the general counsel said. The board recently held in Columbia University, 364 N.L.R.B. No. 90, 207 LRRM 1089 (2016), that university graduate assistants were employees even if they were also students.

The board’s decision not to permit a union election at Northwestern did not undermine the football players’ statutory rights to be free from unfair labor practices prohibited by the NLRA, he said. Scholarship athletes may be entitled to be protected against retaliation if they engage in union activity or other concerted activity for their mutual aid or protection, the general counsel said.

Griffin said his conclusion was based on his review of evidence concerning the Division I scholarship football players at Northwestern. “We cannot conclusively determine the employee status of other kinds of student athletes in cases that may arise in the future,” he said.

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

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

For More Information

Text of the general counsel's report is available at http://src.bna.com/lTi.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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