Former College Athlete Sues NCAA, Member Schools for Student-Athlete Pay

By Doriyon C. Glass and Gregg E. Clifton on

Following the NCAA’s recent policy announcement to allow current student-athletes to benefit from the use of their name, likeness and image, a former college athlete has filed a class and collective action complaint against the NCAA and 23 member schools for failing to pay student-athletes.

Former Villanova football player Ralph “Trey” Johnson filed a suit in the Eastern District of Pennsylvania on behalf of himself and similarly situated persons claiming the NCAA and the named colleges and universities violated the Fair Labor Standards Act (FLSA) and state law by not paying their student-athletes.

The 116-page complaint alleges that student-athletes “engaged in athletic work that is unrelated to academics; supervised by full-time, well-paid coaching and training staff; and integral to the billion-dollar Big Business of NCAA sports—are student employees as much as, and arguably more than, fellow students employed in Work Study programs.”

Two federal appeals courts have held that student-athletes are not employees under wage and hour law. In 2016, in Berger v. NCAA, the 7th Circuit broadly held that student-athletes are not employees under the FLSA. In 2019, in Dawson v. NCAA, the 9th Circuit held that the NCAA or PAC-12 Conference were not employers of student-athletes under the FLSA or California state law.

Recognizing this, Donald Remy, NCAA chief operating office and chief legal officer, said,

“[T]his complaint is filed by lawyers who have already sued unsuccessfully on this subject.”

Remy also noted the suit

“ignores previous court rulings that student-athletes are not university employees. The NCAA remains confident that courts will continue to uphold the precedent set by prior decisions.”

Johnson’s complaint, however, relies heavily on a 2018 case that also was brought in the Eastern District of Pennsylvania by another former Villanova football player. In Livers v. NCAA, although the court dismissed Lawrence “Poppy” Livers’ complaint for being outside the two-year statute of limitations, its analysis of the underlying issues may have opened the door for Johnson’s case to proceed.

Johnson emphasizes the Livers court noted “both Berger and Dawson relied heavily on Vanskike v. Peters” to support the rejection of a multi-factor test to evaluate whether an employment relationship exists. 974 F.2d 806 (7th Cir. 1992). The Vanskike court rejected such a multi-factor test in determining whether a prisoner could be considered an employee under the FLSA. That court determined a holistic application of the “economic reality” test was more appropriate, because the Thirteenth Amendment excludes convicted criminals from the prohibition of involuntary servitude, and thus, a multi-factor test would not capture the true nature of the relationship in question.

Although the NCAA has successfully argued that, like in Vanskike, a multi-factor test is not appropriate for evaluating whether a student-athlete is an employee under the FLSA, the Livers court declined to endorse this argument. In fact, the court noted that, although much of its analysis was centered around a holistic application of the “economic realities” test, “this does not foreclose the possibility that an appropriate multi-factor test could be identified for evaluating the question of whether a student-athlete who receives an athletic scholarship is an “employee” for FLSA purposes. The court went on to state that any such test likely would lean on factors used in Donovan v. DialAmerica Merketing, Inc., a 3rd Circuit case distinguishing between employees and independent contractors.

Johnson’s complaint argues that the Livers court recognized “standard FLSA cases are applicable to NCAA sports,” and proposes two tests that could be used, including the 3rd Circuit Donovan test. The complaint also proposes a test used by the 2nd Circuit in determining whether interns are employees under the FLSA.

Significantly, in Berger and Dawson, both courts’ decisions relied heavily on the NCAA’s “long tradition of amateurism in college sports.” In the wake of the NCAA’s unanimous decision to allow student-athletes to benefit from their name, image, and likeness, the amateurism defense may now be open to legal attack. One of Johnson’s lawyers contends that the NCAA is fine with athletes being paid, so long as someone else pays them.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor developments in this case. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

NCAA Board of Governors Approves Policy Permitting College Athletes to Benefit From Use of Name, Image, and Likeness

By Gregg E. Clifton and Nicholas A. Plinio on

The NCAA Board of Governors has unanimously approved a policy which will “permit students participating in athletics the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model.”

The policy calls for “flexibility” in order “to provide the best possible experience for college athletes.” It was adopted following “comprehensive recommendations” from the NCAA’s internal working group on name, image, and likeness issues headed by Big East Commissioner Val Ackerman and senior college administrator Gene Smith. According to the statement released by the NCAA, the working group’s recommendations were based on several months of gathering feedback from stakeholders, including current and former student-athletes, coaches, presidents, faculty and commissioners across all three NCAA divisions.

It is interesting to note the NCAA announcement did not refer to the ability of student-athletes to “profit” from these policy changes, but rather for student-athletes to “benefit” from the use of their name, image and likeness.

The statement also indicates that the internal working group will continue to gather feedback and refine its recommendations through April of 2020. Each NCAA division is asked to

“create any new rules beginning immediately, but no later than January 2021.”

The statement does not provide specific details regarding the policy; however, it indicates that changes to NCAA rules could occur “immediately.” Of significant note is that the policy directs each of the NCAA’s three divisions to consider these proposed bylaw and policy changes “for the 21st century.”

In effect, the NCAA is attempting to eliminate the state-by-state legislative issue regarding name, image and likeness rights by requiring each NCAA division to prepare these bylaw updates on a nationwide basis, that would apply equally to all schools in each division, regardless of the school’s specific state location.

To that end, the NCAA issued the following guidelines for modernizing name, image, and likeness rules:

  • Assure student-athletes are treated similarly to non-athlete students unless a compelling reason exists to differentiate.
  • Maintain the priorities of education and the collegiate experience to provide opportunities for student-athlete success.
  • Ensure rules are transparent, focused and enforceable and facilitate fair and balanced competition.
  • Make clear the distinction between collegiate and professional opportunities.
  • Make clear that compensation for athletics performance or participation is impermissible.
  • Reaffirm that student-athletes are students first and not employees of the university.
  • Enhance principles of diversity, inclusion and gender equity.
  • Protect the recruiting environment and prohibit inducements to select, remain at, or transfer to a specific institution.

In reaction of the NCAA’s new policy, NCAA President Mark Emmert commented, “The NCAA is uniquely positioned to modify its rules to ensure fairness and a level playing field for student-athletes. The board’s action creates a path to enhance opportunities for student-athletes while ensuring they compete against students and not professionals.”

Jackson Lewis’ Collegiate and Professional Sorts Practice Group will continue to monitor the various issues arising from the NCAA’s Board of Governors regarding the rights of student-athletes to benefit from the use of their name, image and likeness. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

    

 

National Football Players Association Joins Forces with the National College Players Association in Effort to Market Name, Image and Likeness Rights for Student Athletes

By Gregg E. Clifton and Nicholas A. Plinio on

The National Football League Players Association (NFLPA) has announced a partnership with the National College Players Association (NCPA) to jointly explore the marketing and licensing of all college athletes and how they can be paid for the use of their name, image and likeness through the NFLPA’s licensing affiliated entity, REP Worldwide.

Seeking to maximize the value of California’s Fair Pay To Play Act, recently signed into law by California Governor Gavin Newsom, which has empowered California student-athletes to seek financial opportunities relating to the marketing of their name, image and likeness beginning in January 2023, NFLPA Executive Director DeMaurice Smith stated, “We are proud to partner with the NCPA and offer the services of REP Worldwide to offer all athletes the same world class service that NFL players receive. For the first time, a legislature has indicated that these students have rights just like everyone else and we support this continuing movement towards fairness. Regarding the NFLPA’s new partnership with the NCPA, Smith added, the new relationship

“will explore opportunities for merchandise, gaming and other officially licensed products. We will also review how recent developments impact television broadcast revenues in pursuit of fairness.”

Ramogi Huma, former UCLA Bruins linebacker and current NCPA Executive Director, commented as well. “I am grateful that college athletes will finally have representation that cares only about fairness for the athletes.” He continued, “We are on the right side of history and invite the NCAA’s commercial partners to join us. It’s time to embrace a new beginning.”

Despite the announcement of the partnership, the potential relationship between these two entities and college athletes is still unclear.

While representatives of the NFLPA and NCPA continue to express their future role as one of “representation,” college athletes as a group are not viewed as employees and are neither unionized nor legally recognized as a collective group. Neither the National Labor Relations Act nor the Fair Labor Standards Act recognizes student-athletes within their definition of employee.

How and if, the NFLPA, Rep Worldwide and the NCPA can represent all college athletes and serve as their collective voice in exploring group marketing opportunities is a question that remains to be answered.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the various issues arising from the student-athlete marketing rights of their name, image and likeness. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

New Jersey Joins the Growing Number of States Seeking to Create Name, Image and Likeness Rights for Student Athletes in Direct Defiance of Current NCAA Bylaws

By Gregg E. Clifton on

While student-athletes and colleges and universities across the country await an anticipated response from the NCAA’s established working group regarding name, image and likeness rights, a growing number of states continue to announce their intention to circumvent current NCAA Bylaws and introduce legislation to provide student-athletes with the opportunity to capitalize on their name, image and likeness. New Jersey has now added their name to ever-growing list of states willing to challenge the NCAA.

New Jersey State Senators Joseph Lagana and Sandra Cunningham have introduced a bill entitled the New Jersey Fair Play Act, which would allow student-athletes in New Jersey to earn compensation for the use of their name, image and likeness.

The proposed legislation, which has yet to be assigned a formal number, is modeled after legislation that has already been signed into law in California by Senator Gavin Newsom and similar bills currently being considered in Florida, Georgia, New York, South Carolina and Minnesota.

Senator Lagana commented, “The restrictions placed on our student-athletes are fundamentally unfair. A lot of people, including many at the NCAA, earn large amounts of money off of the blood, sweat and tears of talented young New Jerseyans.” He added, “As a former college athlete, I…cannot overlook the inequality created when students that excel in other disciplines, such as the arts, are not restricted in seeking endorsements.”

Pursuant to the proposed Lagana-Cunningham legislation, student-athletes in New Jersey would be able to earn money for the use of their name, image or likeness without effecting the terms of their student-athlete scholarships. The bill’s language also states that any four-year institution would be prohibited from joining any athletic association or organization that prevents a student-athlete from earning endorsement compensation.

While the bill does protect the right of student-athletes to market their name, image and likeness for video games and endorsement opportunities for clothing manufacturers and food and beverage companies and allows the use of professional representation services to negotiate those contracts, it does contain some specific restrictions. The current proposal specifically prohibits student-athletes from having their name, image or likeness associated or used in any way in connection with adult entertainment, alcohol, gambling, tobacco and electronic smoking, pharmaceuticals, controlled dangerous substances or firearms.

Commenting on the introduction of her proposed legislation, Senator Cunningham, the co-sponsor of New Jersey’s Fair Play Act, stated, “Universities are making immense profits from their athletic departments and while students receive scholarships, one serious injury can leave them with no scholarship, no way to pay for the remainder of their degree and no real path on how to move forward with their life li or their career.” She added, “The time has come for us to stand shoulder to shoulder with our student-athletes and stand up to the NCAA’s outdates and unfair rules.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this proposed New Jersey legislation as well as other legislation that is either discussed or introduced around the country. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

The Number of States Supporting Student-Athlete Name, Image, and Likeness Rights Continues to Grow

By Gregg E. Clifton on

The number of states supporting the growing effort to secure legal rights for student-athletes to market their name, image, and likeness for economic benefit without affecting either their scholarship benefits or amateur status continues to grow. Legislators from Minnesota and Georgia have announced that they intend to introduce legislation at their state’s next legislative session to mirror California Senate Bill 206. They will be joining the states of Florida, New York and South Carolina in an effort to follow California’s lead as additional states authorizing student-athletes to use their unique position to secure financial rewards from their name, image, and likeness.

In Minnesota, State Senator Roger Chamberlin announced that he has drafted a bill mirroring the California law. Specifically, Senator Chamberlin’s legislation, which will be formally introduced at the start of the next Minnesota state legislative session on February 11, 2020, would let collegiate athletes accept compensation for the use of their name, image or likeness and permit them to retain licensed agents to represent them without risking their athletic scholarships.

Senator Chamberlin said he introduced the bill as a matter of fairness to the athletes who have missed out on potential earnings as their universities and the NCAA profit off of their likenesses.

“Colleges and the NCAA have been getting rich off these players. It shouldn’t just be these institutions making all of the money,” Senator Chamberlin commented.

He added, “That’s the core of this.” As currently proposed, Senator Chamberlin’s bill has an effective date of January 1, 2024.

In Georgia, State Representative Billy Mitchell has announced that he also intends to introduce legislation in the Georgia General Assembly that would be modeled after California’s legislation and allow college athletes to be compensated for the use of their name, image and likeness. He intends to introduce the bill at the beginning of the state’s next legislative session in January 2020.

Representative Mitchell commented, “With this legislation, Georgia joins a rapidly growing number of states that have filed similar legislation, or, are in the process of doing so.” Rep. Mitchell added,

“Not only is this an idea whose time has come, but Georgia schools would be at a decisive disadvantage when it comes to recruiting with other states that join California in implementing this act if we fail to do the same

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor proposed legislation as it is either discussed or introduced around the country. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

UPDATE: New York Student-Athlete Name, Image, and Likeness Bill Amended (Again)

By Gregg E. Clifton on

New York State Senator Kevin S. Parker recently introduced his bill, the New York Collegiate Athletic Participation Compensation Act, to provide New York college student-athletes an opportunity to market their name, image, and likeness for economic benefit without affecting either their scholarship benefits or amateur status. Now, he has amended the bill a second time.

Initially introduced to mirror the recently passed California Senate Bill 206 (formerly known as the Fair Pay to Play Act), Parker’s initial amendment to his legislation would have created direct financial costs to New York colleges and universities by providing student-athletes a proposed 15% share of the annual ticket revenue generated from each school’s sporting events.

The second amendment to the proposed measure would modify this requirement that each college create an injury fund and share 15% of revenue earned from ticket sales on an annual basis with its student-athletes.

While the second amendment would still require colleges and universities to distribute 15% of ticket revenue, it would reduce the direct student-athlete distributable share by 50% to allow the remaining portion of the 15% mandated ticket revenue distribution to be used to fund the injury fund.

The important terms of the amendment are as follows:

  • Each college must establish a sports injury health savings account and a wage fund. These will be funded by each college and university with 15% of the revenue each school derives from ticket sales from its athletics programs’ events. Half of such revenue will be deposited into such sports injury health savings account and the other half will be deposited into such wage fund; and
  • Each college’s sports injury health savings account will be established to provide a student-athlete who suffers a career-ending or serious injury during a game or practice with compensation upon his or her graduation. The amount of such compensation and qualifying injuries will be determined by the department, in this case, the State Education Department (SED). A qualifying injury will be verified by an independent health care provider not affiliated with such student-athlete’s college; and
  • At the conclusion of each school year, each college’s wage fund will be divided evenly and paid to all student-athletes attending such college.

Senator Parker commented on his amended proposal, “It’s unfair for students to struggle financially while their athletic ability is a source of income solely for the NCAA and the colleges and universities they attend.”

Unlike the California measure, whose advocates argued would not add any specific costs to university athletic budgets or cause universities to suffer any financial hardships, the second amendment to the New York legislation confirms Senator Parker’s intention to create specific and direct university costs to fund his plan.

While authorizing student-athletes to use their unique position to secure financial rewards from their name, image, and likeness while still performing at an amateur level, the loss of 15% in ticket revenues could have a substantial impact on New York schools’ ability to maintain all of their intercollegiate sport offerings.

If passed, the amended legislation would become effective January 1, 2023.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this proposed New York legislation, as well as similar legislation being discussed or introduced around the country. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

National Basketball Players Association Opposes NCAA’s Amended Agent Certification Requirements

By Eve Tilley-Coulson and Gregg E. Clifton on

 

In a recently published letter, the agents of the National Basketball Players Association (NBPA) wrote, “[T]he NCAA Agent Certification process and the rules, regulations, and guidelines surrounding it are needlessly invasive and onerous and are completely counterproductive to meeting the NCAA’s stated purpose in attempting to certify and regulate NBA agents: to protect men’s basketball student-athletes by ensuring that they receive the best possible advice, guidance, and feedback from the most experienced and competent agents in the NBA Pre-Draft process.” The letter continued,

[T]he process itself undermines the ability of student-athletes to truly receive the most competent representation when they are ‘testing the waters.

For years, men’s basketball student-athletes must decide whether to remain in school and continue their education or enter the NBA Draft. Such student-athletes have vastly different agendas and needs from their agents, the NCAA, the NBPA, and the NBA.

The amended agent certification process creates an unnecessary hurdle in a student’s decision-making process and potentially violates agents’ rights.

The new process unreasonably allows the NCAA to obtain the “personal and private information of certified agents.”

For example, during the application process, an agent is required to complete a background check. This, agents contend, “amounts to subpoena power to embark upon investigations that are wholly unrelated to protecting the interests of men’s basketball student-athletes,” dismissing “basic due process rights” and “singl[ing] NBA agents out in a manner that lacks rational justification.”

Such requirements, agents contend, reach beyond protecting “the interests of men’s basketball student-athletes in deciding whether to remain in school or to enter the NBA draft.” Rather, these measures “ignore the realities of the world that student-athletes with professional prospects live in[,] … entrenching an ecosystem that cultivates and fosters an atmosphere of distrust among the student-athletes whom the NCAA is supposed to protect.” Further, many argue, the NCAA does not have the right to make such requirements in the first instance. As Alabama-based attorney Don Jackson stated, “[T]he entity that actually has the responsibility of certifying contract advisers in basketball would be the National Basketball Players Association, not the NCAA.”

The agents end the letter with the following:

  1. NBA agents are not required to adhere to additional certification requirements beyond those imposed by the NBPA.
  2. NBA agents will participate in biannual online seminars centered on preserving the amateur eligibility rights of men’s basketball student-athletes.
  3. NBPA will not agree to the stipulation that an agent can only pay for transportation and lodging when meeting with a student-athlete after that athlete has signed with them, as this requirement harms the ability of men’s basketball student-athletes to thoroughly weigh potential options in making their decision.

Finally, the agents wrote, “the NCAA does not regulate, and has not attempted to regulate, agents in any other sport in this manner.”

In August, the NCAA removed the bachelor’s degree requirement for all prospective agents from its amended agent certification requirements after much backlash. Jackson Lewis attorneys will report on how the NCAA responds to the latest pushback. Please contact us with any questions.

University of Wisconsin-Madison Expands Student-Athlete Discipline Policy

By Nicholas A. Plinio and Gregg E. Clifton on

The University of Wisconsin Athletic Board has approved significant changes to its student-athlete discipline policy. The decision comes shortly after a Wisconsin jury acquitted one of the school’s football players of sexual assault charges.

Wide receiver Quintez Cephus was expelled from the University in August 2018, then, following the jury’s not guilty verdict, he was reinstated and allowed to rejoin the football team.

The amended policy mandates suspensions of any student-athlete who is believed to be imminently facing an arrest or the filing of certain criminal charges. According UW-Madison Vice Chancellor for Legal Affairs Ray Taffora,

suspension is automatic as soon as it is believed that “something is happening soon.”

The offenses triggering suspension under the new policy are as follows:

  • Causing serious physical injury to another person;
  • Creating a serious danger to the physical safety of another person;
  • Making a credible threat of serious physical injury to another person;
  • Sexual assault;
  • Delivering or possessing with the intent to deliver a controlled substance as defined by Wisconsin law;
  • Felony theft or felony criminal damage to property;
  • “Stalking” as defined by Wisconsin law; and
  • Repeated criminal violations deemed to raise the concerns addressed by the student-athlete discipline policy.

Significantly, the University Athletic Board also added campus discipline as a possible trigger for mandatory suspension. However, what type of campus discipline will mandate suspension remains unclear. Also unclear is the point at which criminal charges or an arrest become “imminent.” The Wisconsin Athletic Board did not say whether suspension could result from mere accusations of criminal conduct or whether a certain quantity or quality of information is necessary before the policy is enforced. To address these and other “grey areas,” the policy provides that the Athletic Director, in consultation with the Chair of the Athletic Board, has the authority to decide good-faith questions about whether the policy applies.

Once an athlete is suspended, the University undertakes a factual inquiry into the incident. During this time, the athlete continues to receive financial aid and athletic training services and opportunities, but is barred from competition and team activities. Ultimately, the punishment to be imposed is decided by a committee consisting of the Athletic Director, Chair of the Athletic Board, a member of the Athletic Board, and a designee of the Chancellor. Punishment can range from reprimand to dismissal from the team.

In addition, although the student-athlete discipline policy is separate from the University’s student disciplinary policy, athletes remain subject to discipline under the general academic and non-academic misconduct rules applicable to all students.

Wisconsin appears to be the only major NCAA Division I school to implement a policy of this kind. At this time, the University has not reported whether any of its student-athletes has been disciplined under the new policy.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the application of Wisconsin’s revised Student Athlete Discipline Policy and whether similar policy changes are adopted among other NCAA schools. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

New York Senate Bill To Require Student Athletes To Share In University Ticket Revenue

By Gregg E. Clifton on

The New York Collegiate Athletic Participation Compensation Act, introduced earlier this week by State Senator Kevin S. Parker, has already been amended to provide student-athletes a proposed 15% share of the annual ticket revenue generated from each school’s sporting events. The bill, initially described as legislation comparable to the California legislation formerly known as the Fair Pay To Play Act, now makes New York the first state to propose legislation that would create direct financial costs to colleges and universities in addition to providing student-athletes the opportunity to benefit from the marketing of their name, image and likeness without impacting their ability to continuing participating in college athletics.

Unlike the California legislation, which received unanimous support from the California Assembly and Senate and currently awaits Governor Newsom’s potential signature, the New York bill contains two additional proposals that are not contained in the California legislation. The two additional proposals are:

  • Each college shall establish an injured athlete fund to provide a student-athlete who suffers a career ending or long-term injury during a game or practice with compensation upon his or her graduation. The amount of such compensation shall be determined by the department. Such qualifying injury shall be verified by a health care provider.
  • At the conclusion of each school year, each college shall take Fifteen percent of the revenue earned from ticket sales to all athletic events and divide and pay such amount to all student-athletes.

Senator Parker commented on his proposal, “It’s about equity. These young people are adding their skill, talent and labor to these universities. … You don’t need the shortcuts and the end-arounds because now we’re providing some real support for these student-athletes.”

Unlike the California measure, whose advocates argued would not add any specific costs to university athletic budgets or cause universities to suffer any financial hardships, the New York proposal does create very specific and direct university costs.

While authorizing student athletes to use their unique position to secure financial rewards from their name, image and likeness while still performing at an amateur level,

the direct costs to colleges and universities could be substantial.

In fact, the proposed legislation would require financial contribution of some undefined amount to provide direct financial compensation to student-athletes upon graduation for career ending or long-term injury as well as requiring 15% of the annual gross revenue received by schools from ticket sales to be shared by all athletes. According to Senator Parker, this additional pool of revenue would be split equally among all student-athletes who compete. Similarly, with the State of California, the proposed legislation would not become effective until January 1, 2023.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this proposed New York legislation as well as other legislation that is either discussed or introduced around the country. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Running Backs Union Unit Clarification Petition Efforts Shutout By NLRB

By Gregg E. Clifton on

Acting National Labor Relations Board (NLRB) Regional Director Daniel Nelson has rejected the efforts of the International Brotherhood of Professional Running Backs (IBPRB) to sever and form a new union and bargaining unit for the National Football League’s (NFL) running backs separate and distinct from the current National Football League Players Association (NFLPA).

The Unit Clarification Petition (UC petition), which was filed with the NLRB’s Region 13 in Chicago, was dismissed as the NLRB found no legal basis for the running back position to be carved out from the current, longstanding configuration of the NFLPA to include all NFL players regardless of position.

Nelson rejected efforts by Veronica Patton, who filed the petition on behalf of the IBPRB, seeking the ability to negotiate a separate contract for the league’s running backs, separate and distinct from the current collective bargaining agreement between the league and its players. In issuing his dismissal letter, Nelson rejected the need for any additional NLRB proceedings since there was no evidence of any substantial changes to the established relationship between the running back position and the NFLPA. He stated,

[R]unning backs are not a newly established classification nor has the classification undergone any recent, substantial changes in their duties and responsibilities.

Nelson determined that the NFL and the running backs have an established collective bargaining relationship as part of an established unit that includes all employees in the bargaining unit. He also determined that no facts were presented in relation to the running back position to form a basis to proceed with a unit clarification petition. As we discussed in our blog dated August 29, the IBPRB’s petition failed to satisfy the NLRB test of showing “recent, substantial changes in their operations, or that other compelling circumstances exist which would warrant disregarding the long-existing bargaining history” of the parties to establish a successful basis to proceed with a Unit Clarification filing. In Batesville Casket Company, Inc., 283 NLRB 795 (1987), the NLRB relied on the standard established in Rock-Tenn Co., 274 NLRB 772 (1985), and dismissed a UC petition because the employer-petitioners did not show any “recent, substantial changes in their operations, or that other compelling circumstances which would warrant disregarding the long-existing bargaining history” of the parties.

Despite the lack of support from any NFL players, Patton has challenged the NLRB’s conclusions and vowed to continue to move forward with her efforts. Please contact a Jackson Lewis attorney if you have any questions.

 

 

 

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