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NLRB Seeks Input About Unionizing College Football

Volume 2, Issue 10
May 31st, 2014
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FutBolThe National Labor Relations Board has invited public input on whether college football players should be allowed to form a union. The only catch: You need to be a labor lawyer to comment.

On March 26 an NLRB regional director held that Northwestern University players receiving grants-in-aid are employees and thus can form a bargaining unit. (ACWI Advance, 4-15-14, P. 2)

As a result, an election was held on April 25 where the employees cast ballots on whether to join a union. However, the ballots were immediately seized and the NLRB has postponed counting them until the full board can decide on the
issue.

The board is seeking friend-of-the-court briefs from parties other than the university to address a range of issues. Those briefs are due June 26.

In particular, the board requested briefing on the application of a 2004 decision in which it found that Brown University graduate student teaching assistants were not employees under the National Labor Relations Act and thus could not engage in collective bargaining.

Attorney Christine Holst of the law firm of Barnes & Thornburg LLP said the inclusion of this question may signal the NLRB’s potential willingness to overrule the decision.

However, other legal observers believe the regional director wouldn’t have acted in the first place without the go-ahead from the general counsel, who must have known the views of the board majority.

The board also sought input on the relevance of the players’ status under other federal and state laws, such as Title VII and Title IX.

Holst believes this suggests that the NLRB may be amenable to an argument that because scholarship football players are not considered employees under other federal laws, they should not be considered employees under the NLRA. We shall see.

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