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The NLRB Throws a Flag on NCAA Division I Football and Explains Some Rules to Colleges and Universities

In an official memorandum entitled “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context,” the National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., explains several NLRB enforcement positions on National Labor Relations Act (NLRA) employee status in the university setting.  Most dramatically, the memorandum, which was issued on January 31, 2017 to all Regional Directors, Officers-in-Charge, and Resident Officers, declares National Collegiate Athletic Association (NCAA) football players are actually employees. “We conclude that scholarship football players in Division I FBS private sector colleges and universities are employees under the NLRA, with the rights and protections of that Act.”

Wait a minute . . . didn’t the Board reach an opposite conclusion in the Northwestern football team case? The memorandum interprets the 2015 Northwestern University Board decision to be limited to merely declining to exercise jurisdiction over a representation petition involving a single team’s players but leaving open the issue of whether the players were employees under the Act. Time will tell whether the General Counsel has now thrown a touchdown or an interception. 

What Does This Mean For College Sports?

At the least, we now know that the NLRB will find that most Division 1 FBS Football players are employees under the Act. The memorandum gives an example of the practical impact of its conclusion, “for example, a football player who has been kicked off the team and lost his scholarship because he discussed improving concussion protocols with his teammates in violation of an unlawful team rule would be entitled to the protections of the Act.” Left unanswered are questions about non-Division 1 FBS schools and how other scholarship sports program participants will be viewed. The memorandum acknowledges that the profit derived from a Division 1 FBS football program is an important factor influencing employee status.  The same reasoning may lead to a very different conclusion about other non-profit producing sports programs and even a different conclusion for non-Division 1 FBS football programs.

A Guiding Light for Religious Institutions

The memorandum also addresses whether certain faculty members at religious institutions are exempt from the NLRA. The General Counsel explains a two-pronged test that the Board established in a 2014 decision: (1) Does the university “hold[] itself out to students, faculty, and the community as providing a religious educational environment”? (2) Does the university hold the individual faculty member out “as performing a specific role in creating and maintaining that environment”? If both prongs are met, the NLRB will decline jurisdiction.  The memorandum, quoting a 2002 D.C. Circuit case, states that the Board will “err on the side of being over inclusive and not excluding universities because they are not ‘religious enough’.” 

Student Workers Have Rights Too

The memorandum also explains that the Board’s 2016 decision in Columbia University to extend the Act’s coverage to graduate and undergraduate student assistants actually means that all paid student workers, both academic and non-academic, are employees under the Act, and the NLRB will enforce the extension of Act rights to all paid student workers. All universities and colleges should expect the Board to analyze unfair labor practice charges involving all student workers, whether academic or non-academic (such as cafeteria workers, lifeguards, campus tour guides, and administrative assistants in department offices such as those in financial aid or alumni affairs) accordingly.  

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VII, Number 34

About this Author

Robert Sar, Ogletree Deakins Law Firm, Labor and Employment Attorney
Office Managing Shareholder

Bob is a seasoned litigator and trial attorney who represents clients on all aspects of labor and employment law.  He has taken numerous cases to winning verdict in jury trials, arbitration and prevailed on appeal.  He represents businesses in diverse industries including retail, financial, healthcare, pharmaceutical, professional services, hospitality, manufacturing, sales, software and technology.  Bob believes his success results from being available 24/7 to clients and being ready, willing and able to take client’s cases to trial.  Bob has considerable experience...

Regina Calabro, Ogletree Deakins Law Firm, Labor and Healthcare Attorney
Of Counsel

Gina concentrates her practice on discrimination and harassment matters, wage and hour claims, and noncompetition and trade secret litigation.  Gina regularly counsels businesses on all aspects of employment law, from recruiting and hiring through termination.  She assists clients in drafting policies and procedures and often trains management and non-management personnel on topics such as wage and hour compliance, harassment prevention, and disability awareness and accommodation.  Gina is an experienced litigator who has represented employers before federal and state...

Kimberly Lehman, Ogletree Deakins Law Firm, Labor and Employment Attorney

Kim Lehman represents management in all aspects of employment law and focuses her practice in the area of employment litigation. Ms. Lehman has experience representing management in a wide range of litigation matters in federal and state court and in arbitration. Ms. Lehman also represents employers in workplace safety matters and regularly defends and investigates claims pending with state and federal agencies including the EEOC and NCDOL.