NLRB Attorney’s Memo on Football Players Encourages Unionization at Colleges

By Allen Smith, J.D. Feb 15, 2017
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​Scholarship football players at private universities are employees and should be permitted to unionize, wrote National Labor Relations Board (NLRB) General Counsel (GC) Richard Griffin Jr. in a memorandum to all NLRB regional directors. His opinion is likely to encourage other university groups to unionize, according to David Durham, an attorney with DLA Piper in San Francisco.

"The most likely targets [for union organizers] are teaching assistants, research assistants, interns and residents in teaching hospitals, as well as adjunct or other nontenure-track faculty," he said. The memo could clear the way for college football players to unionize but such unionization would be problematic, he added.

Griffin noted at least one instance where union advocacy might be needed for college football players: formulating rules to prevent concussions. He also emphasized that football players provide services for universities, as employees do for employers, for which they earn valuable scholarships.

But Rep. Virginia Foxx, R-N.C., chairwoman of the House Committee on Education and the Workforce, and Rep. Tim Walberg, R-Mich., chairman of the subcommittee on Health, Employment, Labor and Pensions, criticized the memo as being part of an "extreme, big labor agenda," and called on Griffin to rescind it or step down.

Durham said Griffin is more likely to extend the legacy of former President Barack Obama's support for unions until his term expires Nov. 4.

The memo is a reflection of how Griffin interprets the situation but is not binding, nor are universities compelled to follow it.

"Only after there has been a board decision agreeing with the GC is his position the law," said Ronald Meisburg, an attorney with Hunton & Williams in Washington, D.C., and former NLRB general counsel. "Until then, it is the GC's prosecuting position that may or may not be accepted by the board and the courts. It could also be revised or reversed by a subsequent GC issuing a different litigation position on the topic and/or rescinding this GC memo."

Football Programs Provide Services for Universities

In a 2015 decision involving football players at Northwestern University, the NLRB declined to rule on whether scholarship football players are employees under the National Labor Relations Act (NLRA). Then the NLRB ruled last year that graduate assistants may unionize at Columbia University, Griffin said.

In light of the Columbia University decision, 364 NLRB No. 90, football players at private colleges and universities are employees, according to Griffin in his Jan. 31 memo. The Supreme Court has approved the NLRB's broad interpretation of "employee," and the NLRA contains only a few exceptions—none of which include football players or students, he noted.

In addition, athletes provide services for universities, he added, observing that the Northwestern football program generated $76 million in net profit during the 10-year period ending in 2012-13. The program "provided an immeasurable positive impact to Northwestern's reputation, which in turn undoubtedly boosted student applications and alumni financial donations," he said. Such benefits from football programs are not unique, he added.

Scholarship football players at Northwestern receive up to $76,000 per year for up to five years. Players have daily itineraries that dictate their tasks from the time they wake up until the appointed hour that they go to sleep, he said, again noting that this was not unusual among college football teams.

A unionized football player might challenge being kicked off the team and losing his scholarship because he discussed improving concussion protocols with teammates in violation of an unlawful team rule, Griffin hypothesized. Such advocacy could resemble National Football League (NFL) negotiations over concussion rules, he added. Advocates could also seek specific changes to National Collegiate Athletic Association (NCAA) concussion management guidelines, including NCAA penalties, similar to recent

NFL reforms, for schools that violate the guidelines, he noted.

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Confusion May Ensue

In calling for the memo to be rescinded or for Griffin to step down, Foxx and Walberg said that the memo would have devastating consequences for students and academic institutions. "It has the potential to create significant confusion at college campuses across the nation," they said in a joint statement.

"One can only imagine the chaos caused if players demanded bargaining over practice schedules, seniority in game assignments, compensation or being cut from the team," Durham said. "Maintaining a minimum grade-point average is a condition of being on the team—that is, they are fired if they don't maintain academic standards—the university's academic standards," and even this stipulation would then be open for bargaining.

"There also are many practical problems created by requiring universities to bargain with unions representing the football team, as the universities are subject to comprehensive control by the NCAA and the various conferences," he said. "Finally, employee status may mean that scholarships received may be classified as taxable income."

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