By Timothy D. Cedrone
Context. Much of what people think about a given topic is driven by the context in which it arises. This is especially true about the recent decision of the Regional Director for Region 13 of the National Labor Relations Board in Northwestern University. In his decision, the Regional Director determined that grant-in-aid scholarship football players at Northwestern University are “employees” under Section 2(3) of the National Labor Relations Act (“NLRA”) and can therefore hold a unionization election. As has been well documented, Northwestern University is one of several ongoing cases involving challenges to the fundamental pillars of intercollegiate athletics and the National Collegiate Athletic Association (“NCAA”). Viewed in this context, Northwestern University seems like a unique challenge to the concept of “student-athlete.” Yet, viewed in a historical context, Northwestern University is just the latest in a long line of cases in which student-athletes have attempted to gain status as “employees” under state and/or federal law. The difference, of course, is that the student-athletes in Northwestern University have found initial success. And it is this success that could have employment law consequences outside the confines of Northwestern University’s campus.
Before discussing these employment law consequences, it is important to note a procedural complexity that could limit the impact of the case. Currently pending before the full National Labor Relations Board (the “Board”) is Northwestern’s request for review of the Regional Director’s decision. A victory by Northwestern will result in the Regional Director’s decision having no employment law implications. If the request for review is denied, the Board will release the results of the players’ unionization vote conducted on April 25, 2014. If a majority of the players voted against unionizing, the case will end and the Board’s decision will stand. If the players vote in favor of a union, the Board will certify the election and order Northwestern to bargain. Northwestern would then refuse to do so, causing the student-athletes to file an unfair labor practice charge alleging an unlawful refusal to bargain. After notice and a hearing, the Board would certainly sustain the charge, and Northwestern would have the right to appeal to either the Court of Appeals for the D.C. Circuit or the Seventh Circuit and then the Supreme Court, citing the Regional Director’s decision as the basis for the appeal. An appellate victory would strip the Board’s decision of its precedential value. Thus, only two outcomes could result in important employment law consequences:
The Board affirms and the players vote against unionizing, thus leaving the Board’s decision as valid law for purposes of the NLRA.
The Board affirms, the players vote in favor of a union, and the decision is upheld on appeal, creating federal precedent.
Only if one of these outcomes occurs will Northwestern University have employment law consequences, some of which are described below.
Section 7 of the NLRA
In addition to the right to unionize, Section 7 of the NLRA confers on employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Importantly, Section 7 allows employees to engage in concerted activities, with or without a union. An employer may not interfere with these rights, and if it does, the employee can file an unfair labor practice charge with the Board. If the Board sustains the Regional Director’s decision in Northwestern University, the ruling will result in Section 7 applying to grant-in-aid scholarship Football Bowl Subdivision (“FBS”) football players (and potentially other student-athletes). This will hold true even if the players vote against unionizing because the Board’s decision will be precedential for itself and its Regional Directors. In this situation, grant-in-aid scholarship student-athletes will be protected from retaliation for engaging in concerted activities, which generally involve acting together to try to improve pay and working conditions.
Unionization Attempts at Public and Private Schools
One could argue that any success by the players will have little impact beyond the seventeen FBS private schools because the Board only has jurisdiction over the private-sector employers. However, if the players succeed, many other groups of student-athletes may attempt to unionize. For example, grant-in-aid scholarship male and female basketball players at Division I private schools could attempt to unionize. Student-athletes attending FBS public schools in states that permit public-sector employees to unionize might use Northwestern University as a guide in mounting a unionization effort, particularly in states where the operative statute defines “employee” similarly to the NLRA. Thus, Northwestern University could be the case that paves the way for unionization efforts in other colleges. If other unionization efforts are successful, the NCAA could be left with a situation where schools within the same division are playing under even more disparate sets of rules than they are now.
Generally Applicable Employment Laws
Success by the student-athletes in Northwestern University could also have implications for federal and state employment laws. For decades, student-athletes have attempted to avail themselves of the protections of laws which apply to employees generally. For example, in 1957, the Colorado Supreme Court denied a claim for death benefits under the Colorado Workmen’s Compensation Act made by the beneficiaries of a student-athlete who received a grant-in-aid scholarship to play football and died two days after suffering a head injury in a college football game. State Compensation Ins. Fund v. Industrial Commission, 314 P.2d 288 (Colo. 1957). The Supreme Court ruled that the student-athlete was not an employee at the time of the injury because he was not under a contract of hire to play football. More recently, a student-athlete argued that he was an employee as a matter of law at the time he sustained an injury while playing football for Texas Christian University, thus entitling him to workers’ compensation benefits. Waldrep v. Texas Employers Insurance Association, 21 S.W.3d 692 (Tex. App. 2000). The Texas appellate court rejected the argument and affirmed the jury’s finding that the student-athlete was not an employee of the school at the time of his injury, thus denying his workers’ compensation claim.
Similar to those student-athletes who may use Northwestern University as a guide to unionize in the public sector, student-athletes at public and private schools might cite Northwestern University as persuasive authority in any attempt to secure protections under federal and state employment laws. These laws would include those on discrimination, employee benefits, retaliation, minimum wage and overtime, workers’ compensation, unemployment, family and medical leave, workplace safety, etc. The problem for the student-athletes is that these statutes and the case law interpreting them often define “employee” much differently than does the NLRA. Moreover, student-athletes could face situations where they are trying to overcome a jurisdiction’s binding precedent holding that student-athletes are not employees by citing a decision that is not precedential in the jurisdiction. Thus, while some may see Northwestern University as a case that will pave the way for students to become “employees” in all situations, the reality is that the road to such recognition may be far bumpier than expected.
Conclusion
The extent of the employment law implications of success by the student-athletes in Northwestern University will largely depend on one thing: context. The context in which other student-athletes claim that they are employees will be a determining factor in whether Northwestern University is the first in a line of cases holding that student-athletes are employees or just an anomaly.
Timothy D. Cedrone, Esq., is an attorney with the law firm of Apruzzese, McDermott, Mastro & Murphy, where he practices labor and employment law. He is also an adjunct professor at Seton Hall University, where he teaches Sports Law, and Chair of the Entertainment, Arts, & Sports Law Section of the New Jersey State Bar Association.
