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NLRB General Counsel Concludes Division I Scholarship Football Players are Employees under Labor Law

Scholarship football players in Division I FBS private sector colleges and universities are employees under the National Labor Relations Act, National Labor Relations Board General Counsel Richard F. Griffin has concluded. Accordingly, he explained, the players have all of the rights and protections available to employees under the Act.

The determination is contained in “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context,” Memorandum GC 17-01, to NLRB Regional Directors and others describing the office’s “prosecutorial position” when unfair labor practice charges are filed by or on behalf of certain college and university students, including the scholarship football players.

Although the Memorandum was not issued in connection with a specific case, Griffin noted that, in Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015), a representation proceeding in which a labor organization sought to be certified by the NLRB as the exclusive representative of employees for purpose of collective bargaining, the NLRB “expressly declined to resolve the issue of whether college scholarship football players are employees under the NLRA … because of the nature of the control exercised by the football leagues over individual teams and because of the composition of Division I FBS football, in which the majority of the teams are public universities not subject to the Board’s jurisdiction.” Griffin decided, however, that those “difficulties are not relevant to the question of whether the players are employees under the NLRA” and that excluding the student-athletes from the protections of the Act based on this single determination in a representation proceeding “would undermine the Section 7 protections afforded to all unorganized private sector employees who may never elect to form or support a union.” Thus, he concluded, “[s]uch employees still have the right to engage in concerted activities for ‘mutual aid or protection’ under Section 7 [of the NLRA].”

Section 7 of the NLRA protects the rights of employees:

  • “to form, join or assist labor organizations,”

  • “to bargain collectively through representatives of their own choosing,” and

  • “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The first two rights generally are familiar to managers, but the third right is not commonly known, although can be and, in recent years, has been broadly interpreted by the NLRB. It is a violation of the Act for an employer to take adverse action against an employee for engaging in Section 7 activity.

Protected concerted activity usually involves two or more employees banding together to improve their working conditions, or one employee acting as the spokesperson for other employees while seeking a common workplace improvement, or even one employee acting alone to achieve a change that would benefit other employees. For example, a player advocating for more water breaks for the team during a hot August practice can constitute protected concerted activity. It might be unlawful retaliation, in violation of the NLRA, for a coach to direct the player to run laps in response to the player’s request.

The General Counsel Memorandum casts a wide net, discussing more than student- athletes. According to the Memorandum, “students performing non-academic work who meet the common law test of performing services for and under the control of universities, in exchange for compensation, fall within the broad ambit of [NLRA’s definition of employee under] Section 2(3).” Thus, any student who receives compensation from the institution and performs services under the direction of an agent of the institution likely will find a receptive ear in this General Counsel when alleging that he or she engaged in protected concerted activity and was treated adversely as a consequence.

Universities and colleges should be mindful that any student performing service for the institution potentially may file an unfair labor practice charge over perceived retaliation for engaging in protected concerted activity. Training coaching staffs and managers in all departments about the scope of student rights under the NLRA, as well as reviewing student-athlete handbooks and employee handbooks for NLRA compliance, could help reduce an institution’s exposure in an unfair labor practice proceeding.

Jackson Lewis P.C. © 2022National Law Review, Volume VII, Number 33
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About this Author

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000
Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta
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Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

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Gregg E. Clifton, Collegiate Sports Attorney, Jackson Lewis, disciplinary hearings Lawyer
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Gregg E. Clifton is Office Managing Principal of the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as one of the editors of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major...

(602) 714-7044
Paul V. Kelly, Jackson Lewis, white collar criminal defense lawyer, internal investigations attorney
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Paul V. Kelly is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has extensive experience in white collar criminal defense, internal investigations, complex civil litigation and crisis management. Mr. Kelly is the firm’s White Collar and Government Enforcement Practice Group Leader. A former sports industry executive, he is also one of the firm’s Collegiate and Professional Sports Practice Group Leaders.

617-305-1263
Monica H. Khetarpal, Litigation Experience, Discrimination, Wage and Hour Violations, Jackson Lewis Law Firm
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Monica H. Khetarpal is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. Her litigation experience includes cases involving claims for discrimination, harassment, wage and hour violations, FMLA violations, disability discrimination and requests for accommodation in both single plaintiff and class action matters. She regularly handles matters at all levels, from administrative agencies to appeals in both state and federal courts.

Ms. Khetarpal focuses a significant portion of her practice on representing higher education clients and serves as co...

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