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NLRB lawyer: Northwestern, D-I football players at private schools are employees

But it doesn’t mean they can unionize

NCAA Football: Pinstripe Bowl-Northwestern vs Pittsburgh Vincent Carchietta-USA TODAY Sports

Scholarship football players at Northwestern and all other private FBS schools are employees and should receive protections under the National Labor Relations Act, the National Labor Relations Board’s general counsel wrote in a memo sent to regional directors Tuesday.

The memo, written by Richard F. Griffin, Jr., addressed the Northwestern union case in which the NLRB decided in August 2015 to withhold its jurisdiction in the case, essentially keeping Northwestern’s scholarship football players from collective bargaining.

Griffin acknowledged the NLRB’s decision and did agree that issuing a ruling on the Northwestern football player’s ability to unionize would be complicated and potentially damaging. But, he argued, scholarship football players at private FBS schools should still be legally recognized as employees and given labor protections, regardless of their ability to unionize.

His argument applies to Northwestern, as well as other private schools such as Notre Dame, Stanford, Duke, USC and more.

In determining the players’ employee status, Griffin’s argument centers on a few tenants. First, that the scholarship football players provide the university with a service (football) and receive compensation for those services (athletic grant-in-aid). Further, he argues, it is clear the NCAA and individual schools exert a tremendous amount of control over the players.

“...it is important that these individuals know whether the [National Labor Relations] Act's protection extends to them,” Griffin wrote.

Griffin specifically points to Section 7 of the Act, which gives employees the right to pursue activities for “mutual aid and protection” and be protected from retaliation when engaging in those activities.

He brings up the following examples of how that might apply:

“Thus, for instance, scholarship football players should be protected by Section 7 when they act concertedly to speak out about aspects of their terms and conditions of employment. This includes, for example, any actions to: advocate for greater protections against concussive head trauma and unsafe practice methods, reform NCAA rules so that football players can share in the profit derived from their talents, or self-organize, regardless of whether the Board ultimately certifies the bargaining unit.”

Griffin makes clear that he is only writing about the scholarship football players at Division-I private schools and that other athletes in other sports may or may not be subject to the same protections.

As general counsel, Griffin has no vote on the five-person NLRB and has no enforcement power, but he provides legal basis for the board’s decisions, making this an important legal victory for those who want college athletes to be treated as employees.

“It is our hope that by making our prosecutorial position known,” he writes, “we will assist private colleges and universities to comply with their obligations under the Act.”

But the long-term implications of this memo are more doubtful. Griffin, appointed by President Barack Obama, will see his term end in November. At that time, President Donald Trump will appoint the NLRB’s general counsel as the Board’s majority will switch from a Democratic to Republican majority. Republicans are considered to be harder on organized labor than Democrats, putting the impact of Griffin’s memo in jeopardy.

For now, though, the issue of whether college athletes are employees is far from solved and other teams may follow in the Northwestern players’ steps and push for various employment rights, as they are now able to cite this memo as legal basis for a number of collective actions.