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EPISODE 2: UNIONIZATION BY ATHLETES – EMBRACE OR AVOID?
Introduction: The National Labor Relations Board (“NRLB”) recently determined in the Dartmouth case that the members of the basketball team are “employees” within the meaning of the National Labor Relations Act (“NLRA”), which resulted in a sanctioned election in favor of unionization; the issue of unionization is clearly ripe. The matter is on appeal and collective bargaining is in a holding pattern, but if college athletes are increasingly deemed to be employees of the colleges for whom they play, what will be the impact and is unionization inevitable? Here are some of our thoughts.
Open Questions– Until We Hear More from the NRLB and the Courts; Let’s Speculate Anyhow:
Question No. 1: If some student athletes are considered employees, will all student athletes be employees?
The answer is probably no. This is because a finding of an employer/employee relationship depends on multiple factors, including monies received by the athlete (in the form of scholarships, for example), the extent to which the student’s efforts contribute to the profitability of a program, and the level of control the school exercises over the athlete. As a result, it is entirely possible that top tier football and basketball players will be considered employees while their counterparts on the school’s swim or fencing team are not(no disrespect intended). Different groups of athletes’ experience college life very differently, and those differences will be significant to the question of whether they are employees. See our previous article https://www.powernil.com/post/nilegally-speaking-episode1-employee-status-nil for a discussion on the benefits to athletes of employment status.
Question No. 2: Are there any steps colleges can take to lessen the likelihood that certain athletes will be found to be employees and to avoid unionization efforts?
Since the level of control exercised over athletes is extremely important to the finding of an employment relationship, easing restrictions could impact the outcome. A student athlete will be less likely to be found to be employees when, for example, they are free to choose their own classes – even when that choice conflicts with a practice or alumni event –and when the athletes’ schedules and conduct are less regulated. Furthermore, perhaps colleges could lessen the current restrictions that preclude any type of NIL endorsement when the athlete is at a team activity, such as a post-game interview or promotion. Another example, some colleges publish supplemental handbooks which govern conduct of student athletes on and off the field (e.g. tobacco and alcohol use) that don’t apply to other students.
Question No. 3: If collegiate athletes are employees, how could they become union members?
The first step in a typical organizing effort is that a union recruiter reaches out to employees and asks them to sign authorization cards. If it gathers enough authorization cards, the union will demand voluntary recognition by the college, and petition for are presentation election. For private colleges these efforts will involve the NRLB; public institutions are subject to state laws instead.
Once the NLRB (or equivalent State Board) directs an election, both the union and the employer may campaign for or against unionization. If the employees vote to be represented by the union, for example Service Employees International Union Local 560 which represents cafeteria workers at Dartmouth, the employer and the union begin negotiating a written agreement. An initial contract may take a year or more to negotiate. It is possible that an organization likeathletes.org, which holds itself out as a players’ association for college athletes, could attempt a broader representation.
ABOUT THE AUTHORS:
NILegally Speaking™ is written by PowerNIL/Ken Feinberg, attorney, in collaboration with other expert attorneys focused on employment, labor, contract, and intellectual property law.
For more information please contact:
ken@powernil.com www.powernil.com
