April 7th, 2017
Professional athletes are among the highest paid employees in any occupation and enjoy substantial benefits and union protection under the terms of their employment contracts. In contrast, college athletes are, as a rule, unpaid (though many receive scholarships to pay the costs of their education) and do not enjoy some of the basic protections provided to employees. However, the General Counsel of the National Labor Relations Board believes that practice should change.
The National Labor Relations Board (“NLRB”) is a federal agency that enforces U.S. labor law relating to collective bargaining and unfair labor practices. On January 31, 2017, the NLRB’s General Counsel wrote a guidance memorandum indicating a radical shift may be taking place in the NLRB’s position regarding college athletes. In a previous decision, the NLRB declined jurisdiction over a petition filed by a union seeking to represent college football players at Northwestern University. By declining jurisdiction, the NLRB avoided the issue of whether college scholarship football players are employees under the National Labor Relations Act (“NLRA”).
The General Counsel’s Memorandum specifically addresses NCAA Division I Football Bowl Subdivision private colleges and universities, such as Northwestern. The Memorandum concludes that “scholarship football players in private colleges and universities are employees under the NLRA.” In making this determination, the General Counsel relied on the NLRA’s expansive language and the NLRB’s long use of common-law agency rules. Under those rules, an employee includes persons who perform services for another and are subject to the other’s control or right of control. Moreover, payment is a strong indicator of employee status under the NLRA. The General Counsel’s Memorandum notes that scholarship football players at private universities perform services for their colleges and the NCAA, receive compensation for those services in the form of scholarships, and are subject to the control of their colleges and the NCAA. Moreover, players risk losing their scholarships if they quit the team or are removed from the team for violating school or NCAA rules.
The General Counsel’s Memorandum is not binding precedent, but is rather the opinion of the NLRB’s General Counsel. It is unclear whether the NLRB would, if deciding the issue, agree with the General Counsel. The General Counsel’s Memorandum states a rationale that could be influential and is likely to encourage recognition efforts on behalf of college athletes. The uncertainty of whether college athletes will receive employee status in the future is compounded because the General Counsel’s term expires later this year, and he will be replaced by an appointee of President Trump. Moreover, the composition of the NLRB will transition over the coming years from a Democratic majority to a Republican majority.
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