• NLRB General Counsel Concludes Division I Scholarship Football Players are Employees under Labor Law
  • March 9, 2017 | Authors: Michael R. Bertoncini; Howard M. Bloom; Gregg E. Clifton; Patrick L. Egan; Paul V. Kelly; Monica H. Khetarpal; Robert H. Morsilli; Philip B. Rosen; Jonathan J. Spitz
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  • Scholarship football players in Division I FBS private sector colleges and universities are employees under the National Labor Relations Act, National Labor Relations Board General Counsel Richard F. Griffin has concluded. Accordingly, he explained, the players have all of the rights and protections available to employees under the Act.

    The determination is contained in “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context,” Memorandum GC 17-01, to NLRB Regional Directors and others describing the office’s “prosecutorial position” when unfair labor practice charges are filed by or on behalf of certain college and university students, including the scholarship football players.

    Although the Memorandum was not issued in connection with a specific case, Griffin noted that, in Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015), a representation proceeding in which a labor organization sought to be certified by the NLRB as the exclusive representative of employees for purpose of collective bargaining, the NLRB “expressly declined to resolve the issue of whether college scholarship football players are employees under the NLRA ... because of the nature of the control exercised by the football leagues over individual teams and because of the composition of Division I FBS football, in which the majority of the teams are public universities not subject to the Board’s jurisdiction.” Griffin decided, however, that those “difficulties are not relevant to the question of whether the players are employees under the NLRA” and that excluding the student-athletes from the protections of the Act based on this single determination in a representation proceeding “would undermine the Section 7 protections afforded to all unorganized private sector employees who may never elect to form or support a union.” Thus, he concluded, “[s]uch employees still have the right to engage in concerted activities for ‘mutual aid or protection’ under Section 7 [of the NLRA].”

    Section 7 of the NLRA protects the rights of employees:
    • “to form, join or assist labor organizations,”
    • “to bargain collectively through representatives of their own choosing,” and
    • “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
    The first two rights generally are familiar to managers, but the third right is not commonly known, although can be and, in recent years, has been broadly interpreted by the NLRB. It is a violation of the Act for an employer to take adverse action against an employee for engaging in Section 7 activity.

    Protected concerted activity usually involves two or more employees banding together to improve their working conditions, or one employee acting as the spokesperson for other employees while seeking a common workplace improvement, or even one employee acting alone to achieve a change that would benefit other employees. For example, a player advocating for more water breaks for the team during a hot August practice can constitute protected concerted activity. It might be unlawful retaliation, in violation of the NLRA, for a coach to direct the player to run laps in response to the player’s request.

    The General Counsel Memorandum casts a wide net, discussing more than student- athletes. According to the Memorandum, “students performing non-academic work who meet the common law test of performing services for and under the control of universities, in exchange for compensation, fall within the broad ambit of [NLRA’s definition of employee under] Section 2(3).” Thus, any student who receives compensation from the institution and performs services under the direction of an agent of the institution likely will find a receptive ear in this General Counsel when alleging that he or she engaged in protected concerted activity and was treated adversely as a consequence.

    Universities and colleges should be mindful that any student performing service for the institution potentially may file an unfair labor practice charge over perceived retaliation for engaging in protected concerted activity. Training coaching staffs and managers in all departments about the scope of student rights under the NLRA, as well as reviewing student-athlete handbooks and employee handbooks for NLRA compliance, could help reduce an institution’s exposure in an unfair labor practice proceeding.