Since we have been talking about hefty topics like the NLRB/NLRA and other such employment matters, I thought this week we could lighten things up a bit. So here we go. This post is probably the closest you will ever see me get to talking football — or any sport, for that matter!
In March, Peter Sung Ohr, the NLRB’s Regional Director in Chicago ruled that Northwestern University football players are “employees” within the meaning of the National Labor Relations Act and could vote to unionize. What??? A member of a college sports team is the college’s employee??? How does the NLRB get involved in college sports? The NLRA is a law aimed at protecting workers who otherwise lived and worked under conditions that we now consider unthinkable. At the time, the intended recipients included industrial/factory workers and the like. Are college football players really in the same category? Are they really a group of people that the NLRA is intended to protect? Now, even though the NLRB regional director has ruled that the football players are employees, Northwestern has appealed to the full NLRB in Washington to review the case, and the full Board has agreed to hear it, so the decision is not final. What is the potential impact if the full Board (and any courts that hear subsequent appeals) upholds this decision? The Emplawyerologist looks at these questions after the jump…
You may remember The Emplawyerologist defining of “employee” versus “independent contractor”, for purposes of determining whether a paid worker was entitled to minimum wage, overtime, and, workers’ compensation benefits, primarily under the Fair Labor Standards Act. (Click here if you would like to review). This situation is a bit different. The question here is whether Northwestern’s football players are employees within the meaning of the NLRA. If so, then they are entitled to unionize. If they are entitled to unionize then, things really get cooking!
If the Northwestern football players are employees then wage rates, work rules and work hours are subject to mandatory collective bargaining under the NLRA. (Strikes also become a possibility.) There are some other interesting (and from college and employer standpoints, frightening) effects of such an outcome. Would these athletes then have to be defined or classified as employees under the FLSA? What happens if they are? Employees under the FLSA are entitled to wages. If they have not been paid wages, then they can file wage claims–which means back wages, which means lump sum payments, and possibly collective or class actions on behalf of unpaid student athletes. (My understanding also is that the National Collegiate Athletic Association has certain rules and practices that it might need to revisit in the wake of such a ruling). If student athletes have to be paid wages then state unemployment insurance laws could also kick in full force. The University could be liable for unpaid contributions, spanning a period of years. What if a student athlete, who has been receiving wages is cut from the team? S/he probably gets unemployment benefits. If s/he is injured while playing, a distinct possibility in college football, then, as an employee, there are workers’ compensation laws that apply. See the domino effect — or maybe the downward spiral, depending on your preferred metaphor?
So how did this happen? There are plenty of posts that provide details, so I will just give you the nutshell version. Regional Director Ohr found that the football players were employees because they “perform services for the benefit of the employer (playing football on behalf of the university); receive compensation in exchange (in the form of scholarships) and are subject to the employer’s control in the performance of their duties as football players”. Ohr also distinguished these facts from those in a previous case involving Brown University teaching assistants who lost their bid to unionize, because whereas the teaching assistant’s activities were “inextricably tied to their graduate degree requirements”, he found that “the players’ football-related activities are unrelated to their academic studies”. Ohr primarily focused on these two factors, primarily derived from testimony from one athlete: a) Northwestern derives enormous revenue and benefit from the football team and b) the coaches exert rigorous control over the scholarship athletes both on and off the football field.
Looking at those two points, you, as employers or business owners can relate to at least some of it, right? Control tends to be the main factor in determining any employment relationship. I’ve talked about that in the context of worker classification here and joint employment here. Nature and degree of control –dare I say it— could be controlling here. Now, we may not hear a final answer in the case of Northwestern for years, because whatever the full Board says, you can bet that the losing party will appeal, and someone will at least try to take the case to the US Supreme Court–and then Congress may pass some laws that have significant impact too. So a final answer could be years away.
Assuming we someday are told definitively that Northwestern football players are employees, are all colleges and their teams vulnerable? No. First, this ruling only impacts private institutions, and will in no way affect State colleges and universities, which are covered by state collective bargaining laws, not the NLRA. Athletes at state institutions would have to petition at the state level, and their ability to unionize will depend at least in part on applicable state laws. Also, non-revenue producing sports teams probably will not see any impact of this ruling.
Why might the average employer care about whether Northwestern’s football players can unionize? First, while you may be employers, I am sure some of you like college sports. This ruling, if allowed to stand, could force tremendous changes to how colleges deal with their athletic teams, and you, as fans, may see those differences. Let me leave you with another thought though: This ruling shows that at least in theory, people that we never even thought of in that way could some day be defined as “employees”, and as you can see, the implications are dizzying, in some cases mind-boggling, and, for some, maybe even frightening!
OK, I’m done with football now–even if I didn’t really talk football. Sorry I don’t have a good clip. I’ll try to have one next week. Next week we’ll return to one more NLRA/NLRB topic, employee access to the work premises during their off hours. See you then!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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