NLRB rules football players at private FBS schools are employees

[Tugg Speedman]

If this holds, not far a leap that basketball is next, and MU is a private school.

NLRB rules football players at private FBS schools are employees
Lester Munson, Legal Analyst
February 3, 2017

http://www.espn.com/espn/otl/story/_/id/18612851/nlrb-rules-football-players-private-fbs-schools-employees

he top lawyer at the National Labor Relations Board issued an official opinion this week that players at all 17 private colleges in the FBS are employees of their schools. It is a significant expansion of a 2014 ruling by NLRB regional director Peter S. Ohr that Northwestern football players are employees. Delivered in a memorandum to the NLRB's regional directors, the new ruling's specific provisions, its language and its possible ramifications raise questions and issues for players, coaches and administrators:

What schools and athletic programs are affected by this opinion?

The NLRB does not have jurisdiction over public schools, so the ruling by NLRB general counsel Richard F. Griffin Jr. only affects football teams at private FBS schools. Those universities are Baylor, Boston College, Brigham Young, Duke, Miami, Northwestern, Notre Dame, Rice, Southern California, Southern Methodist, Stanford, Syracuse, Texas Christian, Tulane, Tulsa, Vanderbilt and Wake Forest. The original case dealt with the Northwestern football team, so Griffin did not have jurisdiction beyond that sport.

With these newly established rights, can players make demands for cash payments above and beyond their scholarships?

Yes. The ruling appears to offer a road map for players who wish to share in the huge profits produced each year in college football. In a departure from the usual practice of limiting these opinions to the specific situation before the NLRB, general counsel Griffin projects the possibility that players under his ruling could "advocate" to "reform NCAA rules so that [they] can share in the profit derived from their talents." Although the only issue before the NLRB and Griffin is whether FBS players are employees, he reminds players of the "enormous revenue generated by Division I FBS football programs" and the "substantial salaries paid to university administrators, coaches, and conference officials involved in the sport." The general counsel's opinion is a thinly disguised invitation to players to raise the issue of play for pay with their schools and to push their schools to reform the NCAA.

[warriorchick]

[naginiF]

the ONLY reason i clicked on this click bate was that Chick was the only responder.....

was i disappointed?  absolutely not! 

[warriorchick]

[StillAWarrior]

Actually, this isn't too far from the truth.  Granted, it's the NLRB General Counsel's opinion -- and that's admittedly a significant opinion -- but it's not the same as the NLRB "ruling" on the issue.  Of the various labor/employment related agencies (NLRB, DOL, EEOC, etc.), the NLRB is far and away the most prone to ideological swings based upon the party in the White House.  It is not entirely uncommon to see full 180 degree turns by the Board itself (not just the GC) on substantive issues.  It's definitely worth keeping an eye on things, but the two vacancies on the board will be filled with republicans, so I'm not sure the Board will act in conformity with the GC's memo if and when a case percolates up.

[Tugg Speedman]

Actually, this isn't too far from the truth.  Granted, it's the NLRB General Counsel's opinion -- and that's admittedly a significant opinion -- but it's not the same as the NLRB "ruling" on the issue.  Of the various labor/employment related agencies (NLRB, DOL, EEOC, etc.), the NLRB is far and away the most prone to ideological swings based upon the party in the White House.  It is not entirely uncommon to see full 180 degree turns by the Board itself (not just the GC) on substantive issues.  It's definitely worth keeping an eye on things, but the two vacancies on the board will be filled with republicans, so I'm not sure the Board will act in conformity with the GC's memo if and when a case percolates up.

Before it gets to this point, doesn't one (or more) of the 17 private schools noted above have to organize and vote in a union?  If none of them do, none of this matters.

But if they do, then the NLRB (as it is currently configured) recognizes them, then they would have the same workplace rights as anyone else. 

Do I have this correct?

[Benny B]

Before it gets to this point, doesn't one (or more) of the 17 private schools noted above have to organize and vote in a union?  If none of them do, none of this matters.

But if they do, then the NLRB (as it is currently configured) recognizes them, then they would have the same workplace rights as anyone else. 

Do I have this correct?

As I read it, whether or not they vote in a union is irrelevant as there are NLRB rules that apply regardless.  I could be wrong, however.

Nevertheless, I'm interested in the football-only rationale.... secretly hoping that the "employee" threshold is triggered by something that strictly applies to football (and not any other sports).  In which case, let me be the first to welcome back Syracuse and Boston College along with our Big East conference newcomers, Duke and Vandy.

[muwarrior69]

Why only the private schools?

[Tugg Speedman]

As I read it, whether or not they vote in a union is irrelevant as there are NLRB rules that apply regardless.  I could be wrong, however.

Nevertheless, I'm interested in the football-only rationale.... secretly hoping that the "employee" threshold is triggered by something that strictly applies to football (and not any other sports).  In which case, let me be the first to welcome back Syracuse and Boston College along with our Big East conference newcomers, Duke and Vandy.

The the NLRB just declared football players employees.  So who enforces the worker rights laws and negotiates pay of no union is formed?

[warriorchick]

The the NLRB just declared football players employees.  So who enforces the worker rights laws and negotiates pay of no union is formed?

"Meet my agent, Scott Boras...."

[Tugg Speedman]

"Meet my agent, Scott Boras...."

That's my point, if they don't want to be treated as employees, will someone force them to be treated like them and force them to accept pay and work rules?

[StillAWarrior]

Before it gets to this point, doesn't one (or more) of the 17 private schools noted above have to organize and vote in a union?  If none of them do, none of this matters.

But if they do, then the NLRB (as it is currently configured) recognizes them, then they would have the same workplace rights as anyone else. 

Do I have this correct?

There are other things that could bring this to a head.  Some are not terribly difficult to imagine.  Under NLRA, "employees" have a variety of rights.  You are focusing on the right to form and/or join a union.  But, they also have a right to engage in other protected concerted activity (i.e., join together to raise issues about working conditions).  They have these rights irrespective of whether or not they have a union.  So, if an athlete went to the coach and said, "I've been talking to my teammates, and we think the 6:00 AM practices are unreasonable.  We want those cancelled."  That would be a protected activity and there could be no adverse action against him for that.  It's a stupid example, but just something that came to mind.  There could be many, many more.  Some are more interesting in light of NCAA regulations (e.g., "we want full cost of attendance" or "we want guaranteed four year scholarships").  If that athlete was punished in any way, he could file a charge with the NLRB.  I suspect that the school would oppose it on jurisdictional grounds and that could bring the issue to a head.

There are a lot of different implications to this.  Also, if NLRB concludes that these individuals are "employees," will DOL be far behind?  This would raise a whole host of other issues relating to hours worked, minimum wage and overtime.

[StillAWarrior]

That's my point, if they don't want to be treated as employees, will someone force them to be treated like them and force them to accept pay and work rules?

It really is an interesting situation and not particularly easy to figure out how it will work if athletes are deemed employees.  In the absence of a union, each would be able to try to negotiate his/her own deal.  Just like we all do when we accept a new job (or ask for a promotion, etc.).  And universities would be free to decline to offer anything different than they have always offered (again, just like any private employer).

I think that there is real potential here for a "be careful what you ask for" scenario with athletes...especially if DOL comes to the party and says that they are employees.  If they are employees, I can't help but wonder if schools will stop offering scholarships, and paying kids an hourly rate (and overtime, if they work more than 40 hours).  Trading a scholarship -- particularly at a private school -- for $10/hour would not be a great trade.  And, of course, NCAA would have to figure out how to handle it.

These aren't predictions...just my wondering how it might work out if the athletes are considered employees.

[Tugg Speedman]

Thanks Still ... I agree with you that this opens up a bunch of sticky issues without clear answers.

And, if it applies for football, it will eventually apply for basketball.

[real chili 83]

OMG, what will ND do?  Declare the team Papal envoys, and claim they subject to diplomatic immunity?   Or Papal infallibility?  They are God's favorite team after all.

Easy Heisendomer, don't get your blue and gold panties in a wad.