This union organizing effort is a publicity stunt and the NLRB
petition must be dismissed because scholarship athletes are not
employees....MAYBE, MAYBE NOT.
Members of the football team at Northwestern University (85 scholarship
athletes) are seeking to become the first labor union specific to college
athletes, in an attempt to gain greater legal and financial rights. In an effort
to gain these rights, the newly-created College Athletes Players Association,
backed by the United Steelworkers, filed an election petition with Region 13 of
the National Labor Relations Board (NLRB) in Chicago. The Chicago Regional
Office is scheduled to hold a hearing beginning February 7 to determine whether
the student-athletes are "employees" under the National Labor Relations Act
(NLRA), and thus eligible to form a union. Wessels Sherman received this petition in response to our Freedom of Information
Act request
[click here to view the petition]. Regardless of whether college athletes are treated fairly under the
current system, the NLRA only governs the employment relationship, so
unionization may not be the proper avenue to seek improvements of the college
athlete experience.
Other Related Cases
While this is the first time the NLRB will have to determine whether
student-athletes are employees, other somewhat related cases concerning workers
who do not fit into the traditional definition of "employees" may shed some
light on how the NLRB will approach the issue.
The NLRB has gone back and forth regarding whether graduate student
assistants are "employees," most recently determining in 2004 that they are
primarily students, and therefore not statutory employees. In reaching this
decision, the NLRB noted that "there is a significant risk, and indeed a strong
likelihood, that the collective-bargaining process will be detrimental to the
educational process." Although the NLRB announced in 2012 that it would
reconsider the issue, the case was settled before the NLRB ruled on the
issue.
The NLRB has also determined that unpaid volunteers are not employees within
the meaning of the NLRA. The NLRB stated that "the relationship between the
Employer and unpaid staff is not that of employer and employees contemplated by
the Act. Unpaid staff do not depend upon the Employer, even in part for their
livelihood or for the improvement of their economic standards. They do not work
for hire and thus the Act's concern with balancing the bargaining power between
employer and employees does not extend to them."
The NLRB determines on a case-by-case basis whether disabled workers in a
sheltered workshop are employees. The relevant inquiry is whether the primary
purpose of the workshop is rehabilitation-in which case the workers are not
employees-or industrial-in which the workers are employees.
Finally, although not in the context of the NLRA, at least one court has
determined that a football player from TCU who suffered a paralyzing injury was
not an employee eligible for workers' compensation under Texas law, despite the
fact that his room, board, and tuition were paid, in addition to a small
allowance for incidentals. The court noted that both parties intended the player
to attend the university as a
student, not as an
employee.
Predictions
Because we do not believe that student-athletes can reasonably be found to be
employees under the NLRA, we believe that Region 13 of the NLRB in Chicago will
dismiss this petition. However, this decision would likely be reviewed by the
NLRB in Washington, D.C., and with its current makeup, what it is likely to do
is more difficult to predict. We anticipate a lengthy hearing at Region 13 with
Northwestern presenting testimony from the A.D., university administrators,
coaches, and NCAA officials. Mountains of evidence will be presented showing no
employment contract, no pay check, no withholding, no tax returns filed, no
direction and control over student activities and the same direction and control
in football activities over both scholarship and non-scholarship players.
The current, extremely labor-friendly, NLRB has had no qualms extending its
reach in unprecedented ways. For example, in the controversial
D.R.
Horton decision, the NLRB declared that arbitration agreements that prevent
employees from bringing class action lawsuits, violate the NLRA. The NLRB has
also begun carefully scrutinizing non-union employers' social media policies and
other handbook provisions to determine whether these provisions interfere with
employees' rights under the NLRA. Finally, the recent
Specialty
Healthcare case has opened the door to "micro units." Although those cases
did not concern the definition of employees, they illustrate other ways that the
NLRB has recently asserted its authority in new ways.
Other Considerations
The football players in question attend Northwestern University, which is a
private school. However, the majority of the universities with a strong emphasis
on college sports are public, and thus outside of the reach of the NLRB; each
state has its own distinct labor laws governing state employees. This could
present a huge problem for the unionization of student-athletes on a larger
scale.
Written by: Richard H. Wessels, Esq
