In the movie “Little Giants,” the type cast nerd devises a play he calls “The Annexation of Puerto Rico.”  It turns out to be nothing more than the old fumblerooski – a play which, as run in the movie, is actually illegal (as any high school or college football official worth any credibility would tell you).  Likewise, a Regional Director of the National Labor Relations Board (NLRB) recently reached a little too far into his bag of tricks when he decided that Northwestern University football players are employees. 

There has already been a great deal written about the Northwestern decision, and the ins-and-outs of whether a scholarship athlete is an employee under the NLRA are the stuff of law review, not law blogs.  To give a summary which would make the NFL’s former Director of Officiating, Mike Pereira, proud: Northwestern University football players are employees because they sign a letter of intent and because, given their time commitments and the receipt of scholarship money, they are, in fact, paid to perform on the field while academics take a distant backseat.  On April 24, the NLRB granted Northwestern University’s request for review of the Regional Director’s decision.  Since then, the players were permitted to vote for or against a union on April 25, but their ballots were impounded while the Board considers the case.  And the implications of the NLRB’s latest Hail Mary are many. 

First, assuming that the NLRB upholds the Regional Director’s determination that the players are employees – a pretty fair bet given the litany of intrusions we have seen from the Obama Board to-date – they will be considered employees (in the eyes of the NLRB) even if the players reject representation.  The election result would not change that.  So, if Board affirms the Regional Director, the 17 or so private Division I FBS schools out of the approximately 125 Division I NCAA FBS football programs would have player-employees instead of student athletes.  Of course, this would extend to the private Division I FCS schools, as well as the private Division II, where there also are scholarship players – albeit fewer, and more partial than full. 

Additionally, while everyone is ignoring the small, private Division III colleges because – after all – they don’t have scholarships, perhaps we shouldn’t be so naïve.  Why?  Well, the time commitments of the player-employees are certainly similar, as the Purple Raiders of Mount Union will tell you while they walk away with the Division III Stagg Bowl championship almost every season.  Second, if I am an engineering prodigy who happens to also have a particular set of skills that will assist – to name one example – Case Western Reserve University in beating Carnegie-Mellon University on the football field, perhaps I can gain even more grants-in-aid?  That’s why it probably will be just a matter of time before a challenge is asserted at the Division III level that student athletes at those institutions are employees too.  And, of course, football is not the only sport each school offers, so the Regional Director’s logic arguably extends to other sports, however “minor.”

The second important implication of the Board affirming the Regional Director would be that, as employees, scholarship players would now be protected by Section 7 of the Act.  That means the hallmarks of a football team – discipline, teamwork, dedication, unity – could be subordinated to the idea of protected, concerted activity (of course, the team is already fractured because about one-third of the team is non-scholarship, and thus not employees).  Just based on recent ALJ and NLRB decisions, team rules prohibiting talking negatively about teammates violate the Act.  Team rules prohibiting use or limiting content of social media do the same. Want to call your coach an a-hole? OK, just make sure it is concerted.  Too many gassers at the end of practice? It’s a condition (pardon the pun) of employment, so by all means – collectively complain.  Of course, when the player is benched, cue up the unfair labor practice charge for retaliation.  Section 7 is hardly conducive to building national championship caliber programs – or any program really.

The third implication has to do with that little matter of wage compensation.  As an employee, one has to pay taxes on their earnings.  This includes in the different states and local jurisdiction in which the athletes play – just like pro athletes.  Also, because they are employees, the employers must comply with the Fair Labor Standards Act (FLSA).  Would the athletes be exempt?  Minor league baseball players have recently lodged challenges.  If not, the employer has to track hours worked for purposes of overtime and minimum wage.  At FBS private schools, that probably is not a problem, but work the way down to FCS and Division II programs where there are more partial scholarships and all of a sudden, you have a significant issue on your hands. 

What about other common employment laws?  As employees, presumably the scholarship athletes fall under ObamaCare and the applicable thresholds/coverage requirements.  Of course, all the federal and most likely state anti-discrimination laws apply, as well as workers’ compensation. Finally, the immigration status of players – employee v. student – could be implicated.  Don’t forget about the students who are on non-athletic scholarships (e.g., musicians, cheerleaders). 

All in all, much is on the line as the Board considers this issue.  By pressing forward with this game plan, perhaps the Board – or, at least, the Regional Director – was simply trying to gain publicity; perhaps it was to ensure a steady stream of issues for the Board to try and use in order to expand existing law.  Regardless, The Annexation of Puerto Rico remains a poorly designed play no matter who is carrying it out

Todd Sarver focuses his practice on the representation of management in all aspects of labor and employment law. He has extensive experience representing employers in issues arising under the National Labor Relations Act, as well as in labor arbitrations, work stoppages, injunction proceedings, collective bargaining negotiations, corporate campaigns, unfair labor practice proceedings, labor litigation and bankruptcy proceedings.
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