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Should University Athletes and Graduate Students be Considered Employees?

A few years ago, a group of Northwestern University football players receiving grant-in-aid scholarships filed a petition with the National Labor Relations Board (NLRB) contending they were “employees” under the NLRA and therefore eligible to vote on whether or not they want to be represented for collective-bargaining purposes by an organization called College Athletes Players Association (CAPA). In March 2014, the Regional Director for Region 13 issued a Decision and Direction of Election concluding the Northwestern players were “employees” rather than “primarily students” under the NLRA and thus entitled to participate in the requested election. Northwestern University, 362 NLRB 167; 198 L.R.R.M. (BNA) 1837; 2014 WL 1246914. 

Northwestern appealed. In August 2015, the Board issued its ruling. Northwestern University, 362 NLRB 167; 204 L.R.R.M. (BNA) 1001; 2015 WL 4882656. The Board “punted” on the underlying merits of the petition and instead declined to assert jurisdiction. Among other things, the Board concluded that because only 17 of the 125 universities that participate in FBS football are private (e.g., Northwestern, Stanford, Duke, Vanderbilt, Notre Dame, Rice, Boston College) as opposed to state-run (e.g., Texas, Alabama, Washington, Oregon, Washington State, Oregon State) and the Board has no jurisdiction over the 108 state-run schools it would not promote stability in labor or otherwise effectuate the policies of the NLRA to accept jurisdiction over the Northwestern matter.

 This might be seen as a defeat for the Northwestern players and for college athletes generally. Significantly, though, as the Board noted in declining jurisdiction, the NCAA has made certain reforms since the petition was filed to provide athletes with improved financial benefits, including guaranteed four-year scholarships. Thus, this attack on the student-athlete model caused the NCAA to reform its practices and has promoted additional debate and dialogue which could result in further reforms. 

Meanwhile, a related battle continues on the NLRB front. To what extent are graduate students (who act as teaching and research assistants) at private universities “employees” and thus protected by the wage and hour laws? In October 2015, the NLRB granted a union’s request that the Board revisit its 2004 ruling denying collective bargaining rights to graduate assistants at private universities. The current issue involves research assistants, teaching assistants, and other graduate students at the New School in New York City. In its 2004 ruling, the Board held that graduate students at Brown University lacked bargaining rights because they had a predominately academic rather than employment relationship with their university. Brown University, 342 NLRB 483, 175 L.R.R.M. 1089, 2004 WL 1588744 (2004). As with the NCAA, private universities may need to improve conditions for graduate students in an effort to avoid a reversal of the 2004 ruling.

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