College athletes have long argued — for the most part unsuccessfully — to be treated as university employees. On January 31, 2017, NLRB General Counsel, Richard F. Griffin, Jr., delivered the most significant victory to date for a particular group of these athletes. In an official document, titled Memorandum GC 17-01, Griffin declared that all Division I FBS (Football Bowl Subdivision) athletes qualify as “employees under the [National Labor Relations Act]” and therefore must be afforded “the rights and protections of that act.”
The rights and protections provided for in Section 7 of the National Labor Relations Act include, but are not limited to, “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.”
Departing from previous NLRB statements, Griffin clarified that Division I FBS athletes from both private and public universities are considered employees of their respective institutions. The memorandum dispels the argument that Division I FBS athletes presently receive ample protection by way of their scholarship grants and on account of their status as amateur athletes. Instead, as part of its argument for heightened protection, this memorandum highlights the fact that these athletes help the NCAA yield “millions of dollars in revenue for schools and athletic conferences.”
As a consequence, Division I FBS universities may now reasonably anticipate an increase in unfair labor practice charges and general unionization initiatives. With that said, it is important to note that the impact of the NLRB’s guidance is not confined to university football programs or even student-athletes. Per the memorandum, all “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 [the NLRA’s definition of “employee”]. Educational institutions should consider reviewing employee handbooks to ensure that all students receiving compensation in exchange for services are afforded sufficient leeway to organize and petition for better working conditions.
Outside the educational context, the memorandum should serve as a reminder that the NLRB is an agency that may not share the same motives as elected politicians. Notwithstanding the pro-business rhetoric in the run up to last November’s presidential elections, the NLRB’s decision with respect to student-athletes shows that the agency is continuing upon a pro-union agenda. Regardless of whether your employees are unionized, the NLRB’s expansive interpretation of the NLRA can have a substantial effect on your business. Employers — who already risk sanctions for seemingly innocuous mistakes such as enforcing overly-restrictive social media policies and suspending health insurance for striking employees — should expect no leniency from the Board in light of the Big Labor atmosphere that evidently still permeates the agency. To avoid significant penalties, businesses must take care to remain in compliance with current labor law and not rely on reforms promised on the campaign trail.
Anees Mokhiber is a law clerk with Berenzweig Leonard, LLP. He can be reached at [email protected] David Moon is an associate attorney with Berenzweig Leonard, LLP. He can be reached at [email protected]