On March 26, 2014, the NLRB’s Chicago Regional Director issued a decision finding that approximately eighty-five (85) scholarship football players at Northwestern University are “employees” under the National Labor Relations Act (the “Act”). The Board conducted a secret-ballot election to determine whether the College Athletes Players’ Association would become the bargaining agent for these student-athletes, but the ballots were impounded and the results are on hold pending resolution of legal challenges raised by Northwestern.
Earlier this week the NLRB invited the parties and others who may be interested in the case to file briefs. The Board specifically invited briefs addressing the following issues:
- What test should the Board apply to determine whether grant-in-aid scholarship football players are “employees” within the meaning of the Act, and what is the proper result applying the appropriate test?
- Is the Board’s decision in Brown University, 342 NLRB 483 (2004) applicable to this case, and should the Board adhere to, modify, or overrule the test of employee status applied in that case?
- What policy considerations are relevant to the Board’s determination of whether grant-in-aid scholarship football players are “employees” and what result do they suggest here?
- To what extent, if any, is the existence or absence of determinations regarding employee status of grant-in-aid scholarship football players under other federal or state statutes or regulations relevant to whether such players are “employees” under the Act?
- To what extent are the employment discrimination provisions of Title VII, in comparison to the antidiscrimination provisions of Title IX of the Education Amendments Act of 1972 relevant to whether grant-in-aid- scholarship football players are “employees” under the Act?
- If grant-in-aid scholarship football players are “employees” under the Act, to what extent, if any, should the Board consider, in determining the parties’ collective bargaining obligations, the existence of outside constraints that may alter the ability of the parties to engage in collective bargaining as to certain terms and conditions of employment? What, if any, should be the impact of such constraints on the parties’ bargaining obligations? In the alternative, should the Board recognize grant-in-aid scholarship football players as “employees” under the Act, but preclude them from being represented in any bargaining unit or engaging in any collective bargaining, as is the case with confidential employees under Board law?
The Regional Director’s decision was based largely on the standard of employee status set forth in the Brown University case, which dealt with graduate assistants who were required to perform teaching and research duties. Northwestern’s scholarship football players were distinguished from graduate assistants on the basis that their relationship with the University is primarily an economic one rather than academic in nature.
The questions the Board raised for briefing demonstrate the ripple effect and uncertainty that would be caused by a finding that grant-in-aid scholarship football players are employees for purposes of the Act. The application of tax law, anti-discrimination law, and many other state, federal, and local laws and regulations that apply to employment will be implicated, not to mention the very nature of intercollegiate athletics. Stay tuned. Brief are due June 26, but this may take years to sort out.