GOP Reacts Swiftly to NLRB General Counsel’s Memorandum Regarding the Status of Division I Scholarship Football Players at Private Universities
In a memorandum dated January 31, 2017, National Labor Relations Board (“NLRB”) General Counsel, Richard Griffin Jr., announced his opinion “that scholarship football players in Division I FBS private sector colleges and universities are employees under the National Labor Relations Act” (“NLRA” or “Act”). As “employees”, Griffin explained, scholarship football players are entitled to the rights and protections of the NLRA. Going forward, the General Counsel proclaimed, his office will prosecute unfair labor practice cases brought by such players as violations under the NLRA.
Griffin’s memo addresses the question explicitly left open by the Board in Northwestern University, 362 NLRB No. 167 (August 17, 2015): whether Northwestern University’s football players who received grant-in-aid scholarships were employees under section 2(3) of the NLRA. Id. The Board in Northwestern declined to exercise jurisdiction over a representation petition filed by a union who sought to represent the players. Id. at *7. The Board decided that asserting its jurisdiction to certify the bargaining unit “would not [have] promote[d] stability in labor relations” because the unit consisted only of Northwestern’s players. Id. at *6-7. Competing teams were either excluded from the unit or beyond the Board’s jurisdiction. Id. at *5. The Board does not have jurisdiction over public universities under the NLRA.
Griffin found the Board’s reasoning in Northwestern unpersuasive. Instead, he wrote that the Board’s recent decision in Columbia University 364 NLRB No. 90 (August 23, 2016) controls whether Division I scholarship football players at private universities are employees under the NLRA. In Columbia, the Board applied the statutory language of the NLRA and longstanding common-law agency rules to settle the issue of statutory coverage for graduate assistants. Id. at *17. It held that graduate student assistants at private universities were, in fact, employees under the NLRA. Id. Further, the NLRA does not specifically exclude students or student athletes from statutory coverage as it does other groups. Griffin cited to this language to support bringing Division I scholarship football players at private institutions within the NLRA’s protections.
Griffin’s pronouncement is not a binding decision. The General Counsel prosecutes cases before the NLRB; he does not decide the law. Only the NLRB can issue binding decisions. The General Counsel, however, decides what cases will be tried before the NLRB. Thus, the import of Griffin’s announcement is that the Office of the General Counsel will prosecute unfair labor charges brought by scholarship football players against private sector colleges and universities.
Griffin’s interpretation of employee status of scholarship football players, however, may be short-lived. In a sharp response to the memo on February 2, 2017, the head of the House Committee on Education and the Workforce told Griffin to pull the memo or take a hike. Together, with the chairman of the Subcommittee on Health, Employment, Labor, and Pensions, she chastised the memo as a last-ditch effort to reinforce the prior administration’s “agenda” before President Trump could move the NLRB “in a new direction.” These lawmakers believe Griffin’s “partisan memorandum puts the interests of union leaders over America’s students, and . . . has the potential to create significant confusion at college campuses across the nation.” If followed, they think the memo will have “devastating consequences for students and academic institutions.” Foxx, Walberg Call on NLRB General Counsel to Abandon Partisan Agenda, EDUCATION AND THE WORKFORCE COMMITTEE (February 2, 2017). They also indicated that the memo was the most recent of several tactics Griffin employed to push a “pro-union agenda.”
Significantly, Griffin’s term as General Counsel ends this November. The next General Counsel will be appointed by President Trump, and may very well have a different opinion on this issue. Moreover, while the General Counsel’s Office will proceed with prosecuting unfair labor practice charges brought by scholarship football players, the ultimate decision on whether the players are covered and protected by the NLRA will reside with the NLRB. Currently, there are two vacancies on the five-member Board. It is expected that President Trump will appoint Republicans to both of these positions. By the time any of these cases are heard by the NLRB, the Board probably will have a Republican and employer-leaning majority.
