On January 31, 2017, Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board (“NLRB”), issued Memorandum GC 17-01 (“Memo”). The Memo is titled “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context.” The Memo addresses a few different cases; however, this blog will focus on the discussion made in reference to student-athletes.
The Memo states: “the record developed in Northwestern University, which includes information about NCAA rules that significantly control the activities of Division I FBS scholarship football players; other public information; and the Board’s recent decision in Columbia University, 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.” The Memo comes on the heels of a fairly recent Advice Memo that also indicates student-athletes are employees under the National Labor Relations Act (“NLRA” or “the Act”) and the NLRB’s decision not to find in favor of jurisdiction in the Northwestern University matter. The Memo indicates the basis for the analysis provided was to address “unresolved” issues (i.e., whether student-athletes are protected under the NLRA if they engage in concerted activity) left open as a result of the conclusion reached in Northwestern University.
The Memo addresses the standard for determining whether a student-athlete is an employee as defined by the Act and as addressed in the common law. The Memo concludes that “it is clear from the evidentiary record established in Northwestern University that scholarship football players at Northwestern and other Division I FBS private colleges and universities are employees under the NLRA because they perform services for their colleges and the NCAA, subject to their control, in return for compensation.” The Memo continues that the NCAA has “the right to control and actually controls” competition, terms and conditions of employment, practice and competition hours, academic standards, restrictions on gifts and benefits, and mandatory drug testing. In conclusion, the Memo finds that “FBS scholarship football players clearly satisfy the broad Section 2(3) definition of employee and the common-law test.” As a result, scholarship football student-athletes “should be protected by Section 7 when they act concertedly to speak out about aspects of their terms and conditions of employment” such as matters pertaining to concussions and reform of NCAA rules.”
The Memo only addresses whether the Act applies to Division I FBS scholarship football student-athletes. The Memo indicates that other student-athletes may also have protection under the Act, but there has not yet been a record to establish necessary evidence and an NLRB regional office has yet to conduct an investigation.
It is important to note that the General Counsel of the NLRB will soon no longer be in office. In light of the changing political environment, I would tend to believe that the General Counsel’s successor may take a different view on this issue.