The National Labor Relations Board just hit the NCAA with some alternative facts about that whole "student-athlete" thing.
While teenagers were agreeing to the "the worst contract in America" during the nationally-televised signing day spectacle on Tuesday, the NLRB's General Counsel publicly published a memorandum declaring that college football players at private universities are actually employees of those schools.
The memorandum, authored by Barack Obama appointee, Richard F. Griffin, Jr., opined that "scholarship football players in Division I FBS private sector colleges and universities are employees under the [National Labor Relations Act], with the rights and protections of that Act."
Griffin specifically outlined "Section 7" protections including the right to avoid retaliation if athletes self-organize a union; publicly advocate for player safety; and campaign to share in the profits derived from their on-field performances.
The expansion of these safeguards to college football players could potentially lead to a new wave of litigation if another Kain Colter arises to challenge violations of the NLRA within college football.
"It's definitely historic," Ramogi Huma, executive director of the National College Players Association, told Inside Higher Ed. "By declaring that these athletes are employees, the general counsel is saying that his office is committed to protecting college athletes' employee rights under the labor laws, and I think that can't be understated."
Since the NLRA only applies to private-sector employees, the NLRB's decisions only affect private universities. So Griffin's memo applies to 17 of the 128 FBS football programs, including USC, Northwestern, Notre Dame, and Stanford. How big-time campus football would function with some players lining up as school employees and others still classified as "student-athletes" is unknown. Yet, as Griffin explained, that doesn't matter because "those difficulties are not relevant to the question of whether the players are employees under the NLRA."
Griffin's findings, which he distributed to all of the NLRB's Regional Directors and Officers, jive with any commonsense understanding of major modern college football. As Griffin notes, an employee is defined under the NLRA as any person "who perform[s]) services for another and [is] subject to the other's control or right of control. Consideration, i.e., payment, is strongly indicative of employee status."
College football players receive consideration in the form of scholarships in exchange for their performance on the football field. Then, in an effort to maximize revenue and protect their brands, universities exert significant control over their athletes, far more than they do over other students. For instance, schools can dictate what athletes wear and eat, where they live, when they travel, what classes they take, what they post on social media, and how they communicate to the media.
Although significant, the NLRB classifying college football players as employees is nothing new. It is actually the third time it has done so. In 2014, NLRB Regional Director Peter Sung Ohr supported a bid by Northwestern football players to unionize when he ruled that scholarship football players at Division I schools are employees under the NLRA.
Northwestern appealed Ohr's decision to a five-member NLRB panel, which then punted on the unionization issue in 2015. The Board never officially determined if the players were statutory employees. Instead, it chose to not assert jurisdiction for fear of disrupting the NCAA.
Then, in 2016, NLRB Associate General Counsel Barry J. Kearney issued an "advice memorandum" classifying Northwestern's scholarship football players as "statutory employees" following a challenge to the University's overly broad speech restrictions on its football players.
With his memo, Griffin is seeking to eliminate any uncertainty as to whether scholarship football players are employees. Importantly, he stopped short of expanding employee protections to other campus sports. "We merely determine here that the application of the statutory definition of employee and the common-law test lead to the conclusion that Division I FBS scholarship football players are employees under the NLRA, and that they therefore have the right to be protected from retaliation when they engage in concerted activities for mutual aid and protection," he wrote. "It is our hope that by making our prosecutorial position known, we will assist private colleges and universities to comply with their obligations under the Act."
Unsurprisingly, the NCAA is less than thrilled. Association chief legal officer Donald Remy told The New York Times that "the general counsel's memo and personal opinion do not reflect a binding position of the NLRB. As we have stated before and he was obligated to acknowledge, the NLRB previously decided that it would not exercise jurisdiction regarding the employment context of student-athletes and their schools. The general counsel's memo does not change that decision and does not allow student-athletes to unionize."
The NCAA is correct that Griffin's Memo is not binding law. It is merely stating his opinion as a directive for the NLRB to follow should the issue arise in future cases. And even if it were precedential, the NCAA will soon have a reprieve from the liberal leaning NLRB as Griffin's four-year term expires in November, leaving President Trump to appoint a replacement.
Given that the GOP controls both the White House and Congress, it's likely that Trump will soon shift the five-member Board to a conservative majority that is not as friendly to organized labor. In addition, new Supreme Court nominee Neil Gorsuch is also unlikely to side with athletes in any labor disputes. Gorsuch has a mixed history when it comes to the NLRB. His prior opinions are often against the position of the NLRB, but he did side with the Board in Teamsters Local Union No. 455 v. N.L.R.B., 765 F.3d 1198 (10th Circ. 2014).
More importantly, Gorsuch is openly against what is known as "Chevron Deference." This principal arose out of a 1984 Supreme Court case, Chevron USA, Inc. v. Natural Resources Defense Council, Inc. where the Supreme Court held that courts should defer to administrative agencies' interpretations of statutes. Gorsuch does not believe courts must always defer to such agencies, including the NLRB. As such, it's safe to say that Griffin's memo will not bind Gorsuch should a case involving college athletes' employment status ever make its way to the Supreme Court.
Although the latest NLRB memo will likely serve as only a short-lived victory for college athletes seeking greater legal protections, it is undeniable that Griffin's bold stance is another sign that the NCAA's amateurism shield is crumbling.