One of the first actions of new National Labor Relations Board General Counsel Peter Robb was to rescind guidance that college football players at private universities are employees under the National Labor Relations Act.

Robb’s Memorandum GC 18-02, which created a mandatory Division of Advice review of many Board decisions from the Obama Administration (and rescinded many previous NLRB General Counsel memorandums), rescinded Memorandum GC 17-01, “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context”.

GC 17-01 stated that college football players at private universities are employees under the Act, and, therefore, they are entitled to seek pay for their contributions and to request improved working conditions.

In GC 17-01, former NLRB General Counsel Robert F. Griffin determined that scholarship football players at private colleges, such as Stanford, Notre Dame, University of Southern California, and Northwestern, have employment rights and are protected by the law should they seek protection against unfair labor practices, seek to bargain for a safer work environment, or request pay. Scholarship FBS athletes at private institutions, Griffin wrote, “clearly satisfy the broad definition of employee and the common-law test.” Griffin explained that the athletes, like employees, work full-time hours during the regular season, receive “significant compensation” in exchange for their work, and can be “fired” from the team for poor performance or other reasons. GC 17-01 did not carry the force of law or give players at private colleges the right to unionize or collectively bargain. Therefore, its impact was minimal. However, it provided positive legal substance to the belief that student-athletes are university employees under the labor laws, and it could have lent support to an NLRB determination that student-athletes, in fact, were employees.

Robb’s reversal halts administrative momentum toward the declaration of student-athletes as employees of the universities they attend.

Further, the rescission should quell any remaining notion that the NLRB, as currently composed, will grant student-athletes the right to collectively bargain or the right to file unfair labor practice charges, effectively intercepting the legal Hail Mary thrown by student-athletes in their attempts to organize.

 

 

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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.