Outkicking the Coverage: The Unionization of College Athletes

• Author: Tim Robinson
• Position: J.D., 2017, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 585-616

Outkicking the Coverage: The Unionization of College Athletes INTRODUCTION Few industries have experienced the growth that college football has sustained in recent decades. 1 The athletes are bigger, the stadiums are cathedrals, and revenues of major college football programs have soared to unprecedented heights. 2 This surge in popularity has induced substantial changes to the sport and has given rise to numerous issues that must be addressed if college football is to maintain its meteoric rise. 3 The evolving role of student-athletes has created questions regarding how these individuals fit into the modern landscape of college football; in particular, the issue has arisen regarding whether athletes may be considered employees for the purposes of federal labor law. Recently, a group of scholarship football players at Northwestern University attempted to answer this question. 4 In January 2014, the College Athletic Players Association (“CAPA”) petitioned the National Labor Relations Board (the “NLRB”) to represent a collective bargaining unit consisting of scholarship football players at Northwestern University. 5 In doing so, the athletes presented a novel question: are college athletes considered employees for purposes of federal labor law standards? If so, then these athletes are entitled to the rights prescribed to all employees under the National Labor Relations Act (“NLRA”), including the right to unionize and collectively bargain; if they are not employees, then they are excluded from coverage under the Act and are not entitled to any of the rights granted therein. Ultimately, the Copyright 2016, by TIM ROBINSON. 1. See Eric Chemi, The Amazing Growth in College Football Revenues , BLOOMBERG BUSINESS (Sept. 27, 2013, 12:42 PM), http://www.bloomberg.com/bw/ articles/2013-09-26/the-amazing-growth-in-college-football-revenues [https://perma .cc/BF4H-SVYX]. 2. See id. 3. See Kieran McCauley, College Athletes Shouldn’t Be Paid , DAILY LOCAL NEWS (Apr. 28, 2015), http://www.dailylocal.com/article/DL/20150428/SPORTS /150429826 [https://perma.cc/53FQ-5WUW]. 4. Tom Farrey, Kain Colter Starts Union Movement , ESPN (Jan. 28, 2014), http://espn.go.com/espn/otl/story/_/id/10363430/outside-lines-northwestern-wildcats -football-players-trying-join-labor-union [https://perma.cc/B6UL-Y5Z4]. 5. Id. 586 LOUISIANA LAW REVIEW [Vol. 77 NLRB eluded the question for policy reasons. 6 However, the question remains—what is the status of college athletes under federal labor law? This Comment attempts to predict the outcome of this important issue. Part I provides background on the administrative domain that will determine the status of college athletes. Discussing factors relevant to this determination, Part II explains the National Labor Relations Board’s prior decisions involving college students—specifically, graduate students performing teaching and research duties in return for some form of financial aid. Part III presents the recent petition filed by the Northwestern University scholarship football players and analyzes both the regional director’s original decision and the most recent decision issued by the National Labor Relations Board in August 2015. Finally, Part IV offers a two-pronged solution in which the NLRB would recognize scholarship college athletes as employees under the NLRA and subsequently establish a separate class of employees that retains certain rights under the Act but is restricted from collective bargaining. I. THE NATIONAL LABOR RELATIONS ACT Congress enacted the National Labor Relations Act 7 on July 5, 1935, marking the beginning of modern federal regulation of labor relations. The NLRA embodies the national labor policy of the United States and provides the framework by which employers and employees interact, in the context of both union and non-union activity. A. Background and Purpose of the Act The primary function of the Act was to promote peace between labor and management. 8 In response to instability arising from employers’ unwillingness to recognize certain rights of employees, Congress sought 6. Ben Strauss, N.L.R.B. Rejects Northwestern Football Players’ Union Bid , N.Y. TIMES (Aug. 17, 2015), http://www.nytimes.com/2015/08/18/sports/ncaafootball/nlrb-says-northwestern-football-players-cannot-unionize.html?_r=0 [https://perma.cc/VYJ5 -TLF7]. 7. National Labor Relations Act, 29 U.S.C. §§ 151–169 (2012). 8. See 1 THE DEVELOPING LABOR LAW: THE BOARD, THE COURTS, AND THE NATIONAL LABOR RELATIONS ACT 27–28 (John E. Higgins, Jr. et al. eds., 6th ed. 2012) [hereinafter THE DEVELOPING LABOR LAW]. There is some discussion among commentators that the purpose of promoting industrial peace has been overstated by the Board and that the Act was actually meant to act as a weapon against the Great Depression. See, e.g. , Kenneth Casebeer, Holder of the Pen: An Interview with Leon Keyserling on Drafting the Wagner Act , 42 U. MIAMI L. REV. 285, 320–22 (1987). 2016] COMMENT 587 to protect those rights by encouraging collective bargaining, and, further, to curtail certain private sector labor and management practices that were harmful to the national economy. 9 Relevant sections of the NLRA define and protect the rights of employers and employees. Section 2 provides definitions for the entire Act, including “employer” and “employee.” 10 Section 7 expressly lists employee rights that are protected by the Act, and section 8 safeguards these rights by prohibiting “unfair labor practices” by employers. 11 Finally, section 9 creates the process by which the National Labor Relations Board conducts representation proceedings. 12 Any inquiry into the status of college athletes necessarily begins with an analysis of these sections of the NLRA. B. Section 2(3): Employees The NLRA defines “employee” broadly in section 2(3), declaring, “the term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise.” 13 The Board generally finds little difficulty in applying the broad definition found in section 2(3). 14 With few exceptions, if an individual is not in an excluded category of employees and works for an employer, the Board will assume that the individual is covered by the Act. 15 The NLRA originally did not plainly exclude independent contractors from coverage. However, as amended by the 1947 Labor Management Relations Act (the “Taft-Hartley Act”), section 2(3) provides that the term “employee” shall not include “any individual having the status of an independent contractor.” 16 The Supreme Court has found that Congress’s purpose for excluding independent contractors was to have the Board and 9. OFFICE OF GEN. COUNSEL, NAT’L LABOR RELATIONS BD., BASIC GUIDE TO THE NATIONAL LABOR RELATIONS ACT 1 (1997). 10. 29 U.S.C. § 152 (2012). 11. Id . §§ 157–158. 12. Id . § 159. 13. Id . § 152(3). 14. Id . § 152(3) (citing as exceptions to the definition of “employee” (1) agricultural laborers; (2) laborers in domestic service of any family or person at his home; (3) individuals employed by his parent or spouse; (4) independent contractors; (5) supervisor; (6) individuals employed by employers subject to the Railway Labor Act; and (7) any individual employed by any other person who is not an employer as defined by the Act). 15. THE DEVELOPING LABOR LAW, supra note 8, at 2836. 16. 29 U.S.C. § 152(3). 588 LOUISIANA LAW REVIEW [Vol. 77 courts apply the common law agency test in distinguishing between employees and independent contractors. 17 United Insurance is the preeminent guide for the Board to distinguish between employees and independent contractors, and recent Supreme Court decisions have affirmed the use of common law principles as the test for determining employee status. 18 In NLRB v. Town & Country Electric, Inc. , the Court explained that when there is doubt as to Congress’s intended meaning of a term, courts should infer that Congress intended to incorporate the “established meaning of [the] term.” 19 Thus, when Congress uses the term “employee” without defining it, it should be inferred that Congress meant to incorporate the conventional master-servant relationship set forth by common law agency doctrine. 20 The NLRB also recognizes the application of the common law agency principles to the determination of employee status and applies the master-servant test. 21 The Restatement (Second) of Agency defines a “servant” as “an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.” 22 Therefore, when questions arise over the employee status of certain individuals, as in the case of scholarship student-athletes, the Board will analyze, among other factors, whether the individual performs services under the control and direction of the employer and whether the individual is compensated for these services. 23 17. NLRB v. United Insurance Co. of America, 390 U.S. 254, 256 (1968). 18. See Roadway Package Sys., Inc., 326 N.L.R.B. 842, 849 (1998); NLRB v. Town & Country Electric, 516 U.S. 85, 89 (1995) (explaining that the determination as to employee status under the Act must be based on the ordinary meaning of the term “employee” as reflected in the common law concept of a “master-servant” relationship); Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992). 19. 516 U.S. at 94 (citing Nationwide Mut. Ins. Co. , 503 U.S. at 233–23 (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739–40(1989)). 20. Id . The common law master-servant relationship exists when “a servant performs services for another, under the other’s control or right of control, and in return for payment.” N.Y. Univ., 332 N.L.R.B. 1205, 1206 (2000). 21. See Trustees of Columbia Univ . , 264 N.L.R.B. No. 90 at *4–5, Aug. 23, 2016 (quoting Town & Country Electric , 516 U.S. at 94) (“But it is well established that ‘when...