Some Football Players at Private Institutions are Employees, NLRB Says
February 6, 2017
College football players on scholarships at Division I schools that are part of the National Collegiate Athletic Association (NCAA) Football Bowl Subdivision (FBS) will be treated as employees if they seek protection against unfair labor practices, according to a January 31 memorandum from the general counsel of the National Labor Relations Board (NLRB), Richard Griffin.
The new communication from the NLRB narrowly responds to the question left unanswered by the Board in August 2015 when it declined to rule on whether football players at Northwestern University could unionize. In that ruling, the Board held that asserting jurisdiction would not promote labor stability due to the nature and structure of the FBS. The NLRB has no jurisdiction over public colleges and universities, which constitute 108 of the roughly 125 FBS teams. The Board’s rationale was that exercising jurisdiction over a single team in the FBS would not promote uniformity in labor relations across the subdivision.
The memo applies only to scholarship players at the 17 private institutions in the FBS, stating that the players “clearly satisfy the broad definition of employee [under the National Labor Relations Act] and the common-law test.” Since these players are employees under the NLRA, they therefore “have the right to be protected from retaliation when in they engage in concerted activities for mutual aid and protection.”
The memo clarifies that those players are entitled to:
“speak out about aspects of their terms and conditions of employment. 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.”
While the January 31 memo does not reverse the ruling in the Northwestern University case, it may signal a weakening of the amateur model of college athletics and could serve to encourage more players at private universities to organize.
In response to the memorandum, House Reps. Virginia Foxx (R-NC), chairwoman of the House Committee on Education and Workforce, and Tim Walberg (R-MI), chairman of the Subcommittee on Health, Employment, Labor, and Pensions, criticized the directive as “an affront to hardworking Americans”—a partisan move placing the interest of union leaders before the best interests of students—and claimed that it has the “potential to create significant confusion at college campuses across the nation.”
Foxx and Walberg called on the NLRB's Griffin to “respect the will of the American people and rescind this memorandum immediately. If he is unwilling to set aside his extreme and partisan agenda, then he should step aside as general counsel.”
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