In a January 2017 memo, National Labor Relations Board General Counsel Richard Griffin stated that “scholarship football players in Division I FBS private sector colleges and universities are employees under the [National Labor Relations Act], with the rights and protections of that Act.”
Mr. Griffin further opined that college football players could file unfair labor practices claims with the NLRB if their scholarships were revoked or they were demoted to second string, and that they could also organize their own unions and press for changes to existing NCAA regulations “so that [they] can share in the profit derived from their talents.” In August 2015, the NLRB in Washington overturned a regional director’s decision allowing Northwestern University football players to organizes as employees.
The General Counsel’s legal opinions have no precedential value but they could indicate a new focus at the NLRB.
The Changing Nature of “Employment”
College football is a lot different today than it was fifteen years ago, as an explosion of television money has dramatically increased revenue for almost everyone associated with the sport except for the players.
The overall economy has changed a lot as well, as freelancers, independent contractors, and other non-traditional employees now make up almost 50 percent of the workforce. Most of these people are either full-time freelancers or people with traditional full-time jobs who also moonlight as freelancers. These workers have none of the legal protections that W-2 employees take for granted, including protections against:
- Wage discrimination (i.e. minimum wage and overtime),
- Sexual and workplace harassment,
- Age discrimination,
- Retaliation, and
- Pregnancy discrimination.
Furthermore, under the NLRA, only employees have the right to organize into labor unions.
Interestingly, the Department of Labor broadly defines “employ” as “suffer or permit to work,” a phrase first adopted by the Supreme Court. Under this standard, college football players are indeed “employees,” as are independent contractors, freelancers, interns, and even unpaid volunteers. Employment law attorneys can therefore argue that workplace discrimination victims are also entitled to relief under federal law, even if their employers called them as independent contractors or used some other label.
In the current environment, the Equal Employment Opportunity Commission would likely have little or no interest in cases like these. But an aggressive and experienced employment attorney is ready to stand up for your rights as a worker, and not just your rights as an employee.
For prompt assistance from an experienced employment law attorney in San Jose, contact the Briski Law Firm today, because you have a limited amount of time to act.