It’s Football (Unionizing) Season…

By Fiona Ong - Shawe Rosental LLP

September 15, 2023

Well, my family’s favorite SEC team (Bama) is off to a discouraging start, so I am looking around for other entertainment – and the Dartmouth basketball team just came through with a pass at the National Labor Relations Board.

Perhaps a little background is in order. So, back in 2014, Northwestern University scholarship football players filed a petition with the NLRB’s Chicago Regional office seeking representation by the College Athletes Players Association, a United Steelworkers-supported group. The Regional Director found that the scholarship players were employees within the meaning of the Act because, in exchange for compensation (i.e. their scholarships), they devoted over 50 hours per week to football – a separate activity from the academic degree program. Furthermore, these players were subject to the University’s control – they were required to attend workouts and were restricted from certain personal activities.

There was a turnover on appeal, though. As we discussed in a blog post, in a decision that frankly surprised just about everyone, the union-friendly Obama Board declined to exercise jurisdiction over these football players, citing competitive balance and the potential impact on NCAA rules. The Board noted that approximately 125 colleges and universities participate in the Division I Football Bowl Subdivision, with all but 17 of the universities being outside of the Board’s jurisdiction because they are state-run institutions – and therefore could not be “employers” under the Act. The Board punted on the issue of whether the football players were, in fact, employees.

But in 2017, just after President Trump took office, then-NLRB General Counsel Richard Griffin – an Obama-era holdover – went offside when he defiantly issued a memo asserting that the scholarship football players in Football Bowl Subdivision (FBS – formerly known as Division I) private sector colleges and universities are employees under the NLRA with the rights and protections of the Act – basically for the reasons originally set forth by the Chicago Regional Director back in 2014. Well, given the change in administration – and shift to a Republican-majority Board, that memo got called back and the ball failed to advance.

But new life was breathed into the game with the next change in administration, to the self-proclaimed “most pro-union” President. As we summarized in our October 2021 E-Update, now-GC Jennifer Abruzzo issued her own memo that reinstated the disgraced 2017 memo and asserted that scholarship “Players” are employees of an academic institution. (GC Abruzzo characterized the term “student-athlete” as being intended to deprive those individuals of workplace protections. I’m not sure “Player” was a better choice – it brings up all kinds of negative connotations around men of loose morals).

In support of her position, GC Abruzzo noted recent developments, including the U.S. Supreme Court’s ruling in NCAA v. Alston, recognizing college sports as a profit-making enterprise and finding antitrust violations in NCAA rules limiting certain compensation that schools may offer athletes. She also noted the NCAA’s suspension of name, image and likeness (NIL) rules, thereby enabling Players to profit from NIL activities. Further, she noted the increase in collective action by Players with regard to racial justice issues and health and safety concerns associated with the COVID-19 pandemic, which she characterized as impacting the terms and conditions of employment and subject to protection from retaliation.

Then, in December 2022, as we discussed in another blog post, another Regional Director found merit to an unfair labor practice charge alleging that the University of Southern California (USC) misclassified football and basketball players as student-athletes rather than employees and maintained unlawful work rules. The charge was filed on behalf of the athletes by the National College Players Association, a college athlete advocacy group. The NLRB then issued a complaint against USC (and the NCAA and Pac-12 as joint employers) in May 2023. The case is set for hearing before an administrative law judge beginning on November 7, 2023.

And now, Dartmouth basketball has joined the game. It’s an interesting move, because, as Michael McCann, director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law noted in an ESPN article, Dartmouth, as an Ivy League, does not do athletic scholarships – which takes away the argument that the Players are being compensated for their “work” playing sports. In addition, it’s not like Dartmouth Players are household names, like in the big programs – which undermines GC Abruzzo’s NIL argument.

It will be fascinating to see how this all plays out – and whether it ultimately ends up before the Supreme Court. But what does it actually mean if scholarship Players are deemed to be employees and allowed to unionize?

Well, as my brilliant partner Mark Swerdlin noted in his blog post on the Griffin memo, if the scholarship Players (but not those without scholarships) at some private (but not public) university thinks that their coach is running unsafe practices, they can speak out, and the school cannot kick them off the team for doing so (but they could kick off the non-scholarship players). The scholarship Players (but not those without scholarships) at these same private universities could band together and work on reforming NCAA rules so scholarship Players (and maybe their non-scholarship teammates) can share in the massive profits generated by college football, and if their coach reprimanded or disciplined them for doing so, the NLRB will process an unfair labor practice charge filed by the scholarship players. But what about the non-scholarship Players? Mark cheekily suggests that since they do not receive “compensation” for their “work,” maybe they should file wage payment claims under the FLSA!

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