Comments sought on Northwestern football “employee” status

The NLRB has invited parties and interested amici to comment on several issues arising from the controversial finding by a Regional Director that Northwestern University grant-in-aid scholarship football players can unionize (Case 13-RC-121359).

Football players are employees

On March 26, 2014, the NLRB regional director for Region 13 ruled that grant-in-aid scholarship football players at Northwestern University (NU) are statutory employees under the NLRA and directed a representation election to take place. The regional director concluded that scholarship players who perform football-related services for the university under a contract for hire in return for compensation are subject to the employer’s control and are therefore employees within the meaning of the Act.

On April 24, 2014, the Board granted Northwestern University’s request to review the decision. The request for review and decision and direction of election raised substantial issues warranting review, the Board said in a statement.

Issues on review

To aid in the consideration of the issues raised in the case, the NLRB has invited the parties and interested amici to file briefs on or before June 26, 2014, specifically addressing one or more of the following questions, in addition to any other issues raised:

1. What test should the Board apply to determine whether grant-in-aid scholarship football players are “employees” within the meaning of Section 2(3) of the Act, and what is the proper result here, applying the appropriate test?

2. Insofar as the Board’s decision in Brown University, 342 NLRB 483 (2004), may be applicable to this case, should the Board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis?

3. What policy considerations are relevant to the Board’s determination of whether grant-in-aid scholarship football players are “employees” within the meaning of Section 2(3) of the Act and what result do they suggest here?

4. To what extent, if any, is the existence or absence of determinations regarding employee status of grant-in-aid scholarship football players under other federal or state statutes or regulations relevant to whether such players are “employees” under the Act?

5. To what extent are the employment discrimination provisions of Title VII, in comparison to the antidiscrimination provisions of Title IX of the Education Amendments Act of 1972, relevant to whether grant-in-aid scholarship football players are “employees” under the Act?

6. If grant-in-aid scholarship football players are “employees” under the Act, to what extent, if any, should the Board consider, in determining the parties’ collective bargaining obligations, the existence of outside constraints that may alter the ability of the parties to engage in collective bargaining as to certain terms and conditions of employment? What, if any, should be the impact of such constraints on the parties’ bargaining obligations? In the alternative, should the Board recognize grant-in-aid scholarship football players as “employees” under the Act, but preclude them from being represented in any bargaining unit or engaging in any collective bargaining, as is the case with confidential employees under Board law?

Briefs

The parties may file briefs on review not exceeding 50 pages. Interested amici may file briefs not exceeding 30 pages. The parties may file responsive briefs before July 10, 2014, not exceeding 25 pages. The NLRB will accept no other responsive briefs.

Briefs must be filed electronically by going to www.nlrb.gov and clicking on “E-File Documents.” Parties and amici must serve all case participants on the case participants list under the heading “Service Documents.” If assistance is needed in E-Filing, please contact the Office of Executive Secretary at 202-273-1940 or Executive Secretary Gary Shinners at 202-273-3737. (WKL&B Editorial Staff.)

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