The top lawyer at the National Labor Relations Board issued an official opinion this week that players at all 17 private colleges in the FBS are employees of their schools. It is a significant expansion of a 2014 ruling by NLRB regional director Peter S. Ohr that Northwestern football players are employees. Delivered in a memorandum to the NLRB's regional directors, the new ruling's specific provisions, its language and its possible ramifications raise questions and issues for players, coaches and administrators:
What schools and athletic programs are affected by this opinion?
The NLRB does not have jurisdiction over public schools, so the ruling by NLRB general counsel Richard F. Griffin Jr. only affects football teams at private FBS schools. Those universities are Baylor, Boston College, Brigham Young, Duke, Miami, Northwestern, Notre Dame, Rice, Southern California, Southern Methodist, Stanford, Syracuse, Texas Christian, Tulane, Tulsa, Vanderbilt and Wake Forest. The original case dealt with the Northwestern football team, so Griffin did not have jurisdiction beyond that sport.
What does this ruling do for players at these schools?
The ruling places players under the National Labor Relations Act, giving them new rights and leverage. It is a position long enjoyed by professional athletes, but it is new to college sports. They are now free to "engage in concerted activities for the purpose of [their] mutual aid and protection." That means any individual or group of players now has a protected right to advocate for improvements in their situations. The players need not form a union (the ruling has no impact on their right to do that) and need no certification from the NLRB to do so. If their school threatens their scholarships or attempts to interfere in any way with an attempt by players to establish a voice in, say, practice schedules or contact drills, the school would face penalties and sanctions under the National Labor Relations Act.
With these newly established rights, can players make demands for cash payments above and beyond their scholarships?
Yes. The ruling appears to offer a road map for players who wish to share in the huge profits produced each year in college football. In a departure from the usual practice of limiting these opinions to the specific situation before the NLRB, general counsel Griffin projects the possibility that players under his ruling could "advocate" to "reform NCAA rules so that [they] can share in the profit derived from their talents." Although the only issue before the NLRB and Griffin is whether FBS players are employees, he reminds players of the "enormous revenue generated by Division I FBS football programs" and the "substantial salaries paid to university administrators, coaches, and conference officials involved in the sport." The general counsel's opinion is a thinly disguised invitation to players to raise the issue of play for pay with their schools and to push their schools to reform the NCAA.
How can players use these rights to advocate for pay or for other improvements in their working conditions?
Any players at any of these 17 schools with the willingness, the fortitude and the patience to take on their schools and the NCAA can initiate the process. As employees protected by the NLRA, they can formulate their demands and pass them on to their coaches and school administrators. This could be in the form of a letter or a request for a meeting, for instance. The schools cannot ignore the players' demands to be heard. The schools must respond in good faith or face a charge known in American labor law as an "unfair labor practice," a charge that can result in severe penalties and sanction from the NLRB. The universities, of course, are not obliged to agree to the players' demands, but they are required to listen to and reply to them. The challenge for any players following this path is that the process can continue for months or even a year or two, a serious difficulty for an athlete with five scholarship years.
Alternatively, players could file a complaint of unfair labor practice -- for instance, for not being paid for their work -- with the NLRB. That complaint would then work through the lengthy NLRB decision process.
Can others pursue this process on behalf of college athletes?
Yes. Even without a direct connection to the school, under American labor law, anyone can file a charge with the NLRB that the players are suffering from an "unfair labor or practice." The charge would be that the players who produce the profits are not able to enjoy the full benefits of their work. David Rosenfeld, an activist labor lawyer in Alameda, California, filed an unfair labor charge against Northwestern last year suggesting that the coaches' monitoring of players' social media and other restrictions on players were unfair labor practices. Rather than contest Rosenfeld's charges, Northwestern made significant changes in its player handbook.
What prompted this ruling from the general counsel of the NLRB?
One of the duties of the general counsel is to offer interpretations of NLRB rulings that will assist employers, unions and employees as they consider employment issues. Here, general counsel Griffin was expanding on regional director Ohr's previous decision in the Northwestern case. In Griffin's ruling, which also dealt with two other cases related to university employees (but not sports specifically), the paragraphs devoted to college football offer a clear warning to private colleges and universities. He explains in language highly unusual in the arcane world of labor law that in the current situation, "the revered tradition of amateurism in college sports and the substantial value of a university scholarship are set against the enormous revenue generated by Division I FBS football programs." Although he stops short of any statement that players should be paid (the precise issue was not before the NLRB), he clearly implies that there is something wrong with the current system and that it may not comply with the norms of American labor.
What is the legal effect of the general counsel's opinion?
It is nothing more than the opinion of the current general counsel of the NLRB. Griffin was appointed to the job by President Barack Obama in 2013. His term ends in November. A new general counsel, appointed by President Donald Trump, could rewrite and reverse this opinion. That happens rarely but is possible. If the new counsel were to reverse Griffin's opinion, then the Northwestern players would remain employees under the original decision by Ohr, the regional director of the NLRB in Chicago, but players for the other 16 private schools would lose their employee status. The decision on the Northwestern players' rights has already been finalized.