Political winds could shift view of college athletes as employees

NLRB memo sides with higher ed student unionization, but that could be revised
By: | Issue: May, 2017
April 18, 2017

A January memorandum issued by Richard Griffin, the current general counsel of the National Labor Relations Board, has further stoked long-running debate over whether university students should be deemed “employees” who can assert collective bargaining rights under the National Labor Relations Act.

The issue has particular significance for schools with high-profile football or other athletic teams, which often generate significant profits.

Who is an employee?

In the memo, Griffin—an Obama-era appointee whose term ends in November of this year—sides with the student-athletes. The memo surveys three recent labor board decisions, each of which addressed the legal recognition of student-workers’ unions.

The first decision referenced in the memo, Pacific Lutheran was a 2014 case in which the labor board addressed its jurisdiction over religious institutions, and also refined its legal test for when faculty become “managers” and thus no longer “employees” protected by the labor relations act.

More pertinent to the issue of student-athletes, the memo goes on to discuss the board’s decisions in Columbia University and Northwestern University.

In the Columbia case, the board recognized a union consisting of teaching assistants. The labor relations act, the board reasoned, utilizes the broad common-law definition of “employee” as any individual who performs services in return for compensation.

The act allows for only limited, specific exceptions to that definition, none of which creates a carve-out for “employees” who also happen to be students of their ostensible “employer.” The board overturned its prior decisions that had held that teaching assistants generally were not statutory employees.

In the Northwestern case, however, the board held that it lacked jurisdiction and passed on deciding the “employee” status of Northwestern’s football players. The decision blocked the football players’ attempt at unionization.

But the memo also states that, in the general counsel’s view, Division I football players at private universities who receive grant-in-aid scholarships are employees under the labor relations act, and are entitled to all the protections that entails. In support of this view, the memo follows the reasoning undergirding the Columbia decision.

The opposition

Critics, however, argue that the memo ignores the real-world effect of allowing students—particularly athletes—to unionize.

Permitting football players to unionize, for instance, could bombard university administrators with bargaining demands over a range of topics including practice times, concussion protections, the right to earn pay, the right to receive proceeds from merchandise sales, and grade requirements.

Critics further argue that the general counsel has snatched the issue from the board’s judicial arm. Indeed, the memo is enforcement guidance for the board’s regional directors—it lacks the force of law unless and until a three-member panel of the board rules on its new legal interpretations.

Uncertain future

Ultimately, the memo may prove to be a last-ditch attempt by the Obama-era board. With a new administration, there will likely be a prompt turnover in the board’s political balance.

The new general counsel appointed by President Trump in November 2017 may revise or reverse the memo, or a Republican-dominated board panel could overturn it and the Columbia decision outright.

In the meantime, however, universities facing unfair labor practice charges or student-organizing efforts can expect the board’s regional officers to follow Griffin’s memo and broadly protect collective bargaining rights of student-workers and athletes.

J. Nelson Wilkinson is a labor and education law attorney with Williams Mullen who represents small, medium and large businesses and academic institutions.