Legal Alerts

27 Mar 2014

Student Athletes or “Amateur” Employees

In The Student Athletes or “Amateur” Employees The National Collegiate Athletic Association (“NCAA”) calls them “amateur” athletes; the National Labor Relations Board (“NLRB”) calls them employees. In its first foray into the collegiate sports arena, the NLRB has tackled the question of whether student athletes on the Northwestern University football team are “employees” within the meaning of the National Labor Relations Act (“NLRA”) and therefore eligible for representation by a union.

In a widely anticipated decision, the NLRB’s Regional Director in Chicago issued a Decision and Direction of Election on Mar. 26 concluding that members of the Northwestern University football team who have been granted four year “grant-in-aid” scholarships by the University, fit the common law definition of an “employee” and therefore may vote on whether they wish to be represented in collective bargaining with the University by the College Athletes Players Association (“CAPA”), a newly formed union. The Regional Director concluded that the athletes were compensated for their services through the scholarships (which apparently totals $61,000 per school year but must cover the cost of tuition, room and board). The Regional Director also concluded that the athlete’s “job” was not primarily educational in nature. The decision excludes from the bargaining unit “walk-on” players who receive no scholarship money and players whose eligibility has been exhausted.

The NLRB decision has already garnered intense media coverage. On the date the decision was issued, The Lowenbaum Partnership’s R. Michael Lowenbaum was interviewed by West Virginia Media for airing on its affiliated television stations. Lowenbaum observed that classifying students as employees would appear to contravene basic tenants of labor law developed over the past 80 years; and if Northwestern University is not successful on appeal, the decision will have immediate and far-reaching implications for the NCAA and its member institutions. More intense scrutiny will surely follow as private colleges and universities assess the potential consequences of the decision for their own athletic programs.

The NLRB decision is interesting for several reasons. First, it provides a window into the life of a college athlete at a major university. Northwestern may be embarrassed by the decision’s observation that its football players need only maintain a 1.8 GPA entering their second year of school to remain eligible to play. The decision also emphasizes the enormous commitment of time and energy required of a student athlete. Second, the decision creates a serious problem for the NCAA which prohibits student athletes from accepting compensation related to their status as athletes. This decision appears to call into question the whole concept of “amateur athletics.” Third, the decision has potentially serious ramifications for compliance by private universities with other labor and employment laws. For example, must student athletes now receive minimum wage and overtime pay under the Fair Labor Standards Act, or compensation for “work-related” injuries under the state Worker’s Compensation Act? Fourth, the decision creates practical problems for Northwestern’s Head Coach. If a player misses a tackle and is directed to run five laps, will he respond that the collective bargaining agreement only requires three laps and that he is filing a grievance? Will players bargain for shorter practices or better dormitory rooms?

Since the NLRB has no jurisdiction over political subdivisions, this decision does not apply directly to public colleges and universities. Moreover, this decision is only the first step in what will surely be a lengthy appeals process. The University, with the backing of the NCAA, has already announced its intention to file a request for review of the decision by the five member National Labor Relations Board. However, the Board’s composition (3 Democratic appointees and 2 Republican appointees) means that the appeal may be the equivalent of a “Hail Mary” pass for the University. Ultimately, if the NLRB upholds the Regional Director’s decision, the University, through a convoluted process, can present its case to a federal court of appeals and perhaps ultimately to the Supreme Court. Meanwhile stay tuned. “It ain’t over ‘til it’s over.”

If you have any questions about the NLRB’s or any other labor relations matter, please contact Rob Seigel at rseigel@lowenbaumlaw.com, R. Michael Lowenbaum at rml@lowenbaumlaw.com, Corey Franklin at cfranklin@lowenbaumlaw.com, or Dave Frenzia at dfrenzia@lowenbaumlaw.com.


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