First They Let You Tweet—Then They Pay You

footballBy Michael Rebagliati

Should your employer let you comment on your workplace on social media? How much should your employer pay you? Do you even “work” for your employer?

For college football players, all of these questions are now connected. Last month a regional office of the National Labor Relations Board issued a controversial advisory memorandum. The NLRB indicated that some rules in Northwestern University’s Football Handbook were unlawfully overbroad with respect to Section 8(a)(1) of the National Labor Relations Act. The NLRB previously interpreted this provision of the statute as enforcing certain rights of expression for employees on social media where those rights relate to “concerted activity for mutual aid and protection.” The provisions of the Northwestern Football Handbook at issue discouraged players’ social media presence largely due to concerns about protecting the school’s image. Among other things, the NLRB memorandum countered that players must have greater freedom to post on social media to discuss issues such as their health and safety.

In response, Northwestern voluntarily revised its handbook while the matter was before an NLRB regional office. Thus, the NLRB Regional Director decided to dismiss the matter before proceeding to more formal stages of adjudication, which means that the advisory memorandum is not an official written decision of the Board. Nonetheless, experts believe that it signals that more conflict could be on the horizon with respect to how schools treat their student athletes.

From that perspective, the most important line in the memorandum is the unassuming “footnote 1,” which simply states that “for purposes of this memorandum . . . Northwestern’s scholarship football players are statutory employees.” Immediately after the NLRB memorandum became public, the NCAA quickly reminded the world that the characterization of football players as employees was merely hypothetical. Others called it historic.

This raises two questions: (1) Why do so many people actually read footnotes? (2) And more importantly (and more seriously), why all the fuss over whether athletes are statutory employees?

If college football players are employees under the meaning of the National Labor Relations Act, then the NLRB can hear claims that schools are subjecting athletes to other “unfair labor practices.” In the last several years athletes and economists alike have argued that the paramount unfair labor practice here is that universities make millions of dollars off of the labor of their athletes without fairly compensating them. This argument implicates deeper questions of whether college football thrives on “revered traditions of amateurism” or cartel economics.

Viewed in this light, the Northwestern Handbook spat looks less like a one and done fight and more like the opening of a new front in an old war. Until now, proponents of paying student-athletes have focused their efforts on anti-trust suits or on unionizing. However, the Supreme Court recently denied certiorari in a leading anti-trust case, and the NLRB punted and declined to decide whether the National Labor Relations Act applied when some Northwestern football players tried to unionize.

It is in this decision vacuum that the handbook claim arose. But who actually filed the claim? Per 29 CFR § 102.9 American labor law allows any person to bring an unfair labor practice charge before the NLRB—even if that person is not actually affected by the alleged unfair practices. The charge was in fact brought by the heavy hitting, employee-side labor attorney, David Rosenfeld. Rosenfeld apparently brought the action on his own initiative and obtained the Northwestern Handbook via a request under the Freedom of Information Act. Given his victory and the NLRB’s signal that it may consider college athletes to be employees on an ad-hoc basis, there is no reason that enterprising lawyers or student-athletes must confine these charges to handbook issues. Perhaps the next unfair labor practice charge will allege an unlawful lack of compensation.

However, even if athletes and lawyers succeed in using 29 CFR § 102.9 to push athlete compensation, it is important to remember that the NLRB only has power over private schools. Football programs in public schools are generally created by state legislatures and are thus subject to state labor laws, not NLRB administrative oversight. This patchwork governance problem is one reason that the NLRB declined official jurisdiction over Northwestern in the unionization dispute.

But what if further regional level NLRB opinions effectively force private schools to begin “voluntarily” paying their players in exchange for dropped charges? Dominant players who would otherwise go to the public Alabama’s of the world would see their peers getting paid at private schools. This could make recruiting more difficult for public schools, thus incentivizing state legislatures to find workarounds. That said, athletes and advocates would still need to contend with the cross-jurisdictional governing body that is the NCAA. It is hard to imagine that it will quietly acquiesce.

Nevertheless, some proponents of student-athlete pay expound a free-market capitalist approach—schools should pay players whatever the market will bear. If the Rosenfeld-led § 102.9 unfair labor charging strategy continues, then perhaps these advocates’ end will become their means as well.

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