The NCAA will go to its impending grave claiming that Division I athletes are no different than any other students on campus.
Unfortunately, nobody is building journalism majors a $260 million lakefront practice and training facility anytime soon. College football is big business and any good business invests in infrastructure, talent, and facilities. Businesses, though, must also protect their brands. That is why — unlike other students on campus — nearly ever aspect of an athlete’s life including what they wear, what they say, what they eat, and even what they tweet are subject to the athletic department’s control.
A recent ruling by the National Labor Relations Board (“NLRB”), however, has now eliminated most of the constraints and free speech limitations placed upon college football players by private universities. As first reported by ESPN’s Lester Munson:
In an unprecedented foray into college sports, the [NLRB] has declared that Northwestern University must eliminate “unlawful” rules governing football players and allow them greater freedom to express themselves. The ruling, which referred to players as employees, found that they must be freely allowed to post on social media, discuss issues of their health and safety, and speak with the media.
The ruling (full text below and here) means that the 17 private universities that play in the FBS, including Notre Dame, Stanford and Baylor can no longer ban social media use or even strictly regulate how athletes address the media. Note, however, that the NLRB only governs relations between private employers and their employees, so it has no power over public schools.
At issue in this instance was a challenge to the Northwestern Football Handbook’s broad speech restrictions. David Rosenfeld, an activist labor lawyer, sought remedial action from the NLRB for alleged unfair treatment of the football players. In response, Associate General Counsel Barry J. Kearney issued an “advice memorandum” to NLRB Regional Director Peter Sung Ohr classifying Northwestern’s scholarship football players as “statutory employees” and calling the team rules “unlawfully overbroad.”
Although only an advice memo and not an official written decision by the Board, the fact that some within the NLRB still view college football players as employees leaves the door open for future pay-to-play challenges. Remember, in 2014 Ohr was the one who held that Northwestern athletes were employees when Kain Colter was fighting to unionize the team. The University appealed Ohr’s decision to a five-member NLRB panel, which then punted on the unionization issue. The Board never officially determined if the players were statutory employees. Instead, it chose to not assert jurisdiction for fear of disrupting the NCAA, but left the door open for future challenges.
Regarding Northwestern’s Football Handbook, the University voluntarily changed several of its rules to avoid future litigation. For a football program as secretive and sensitive as the one under Pat Fitzgerald’s reign, some of these rule changes are quite significant.
First, the Sports Medicine & Player Policy Communication Rule previously stated, “Never discuss any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone. The team is a family and what takes place on the field, in meetings or in the locker room stays within this family.” Of course, like any good family, unions are not tolerated. The problem with this rule, though, was that athletes could be punished for speaking out to the media or an outside doctor about a health or safety concern. This is no longer the case.
Ironically for a University that bills itself as having the best journalism school in the nation, Northwestern also banned its athletes from speaking to the media unless the athletic department approved the outlet and granted the interview request. Now, athletes can speak to the media freely if they choose to do so.
In addition, the NLRB also found Northwestern’s overly broad Social Media Policy unlawful as it permitted the athletic department unfettered access to athletes’ profiles and could levy punishments for anything that could embarrass or harm the “image and reputation” of the school. Essentially, Northwestern football had a “conduct detrimental” to the school clause ala Roger Goodell and the poorly-worded NFL Collective Bargaining Agreement. Unlike the NFLPA, though, Northwestern’s athletes never negotiated for or accepted these terms. Therefore, the NLRB deemed them unlawful restrictions on speech.
Lastly, rules governing Northwestern’s student-athlete grievance process were also deemed unlawful and Northwestern has completely eliminated them. Previously, any “grievance concerning personal rights and relationships” within the team had to begin with an appeal to the team’s Director of Football Operations, further appeals to Fitzgerald and the athletic director, and ultimately a review by Northwestern President Morton O. Schapiro. The NLRB found that the rule unlawfully “prohibited discussions with fellow players and third parties concerning workplace grievances.”
Although these changes are only seemingly minor tweaks to its governance of football players, the NLRB’s findings could usher in a wave of future grievances and challenges to how private universities treat revenue-producing athletes. This challenge to Northwestern’s handbook came from a single attorney with no relation to the school who was not representing any athletes. American labor law permits such claims from anyone suspecting an employer violation.
If the NLRB, at least at the regional level, is classifying athletes as employees, then there is seemingly no limit to the challenges that could arise. Someone could next challenge the restriction on transfers or the failure to pay athletes as unfair labor practices. As most of the artillery launched at the NCAA is now arising in the antitrust context, the next battleground is likely with the NLRB.
Until the full Board does its job and determines the employment status of college athletes, a myriad of regional-level decisions could keep private universities scrambling to maintain lawful labor practices. Change is coming, it is just a matter of when.
Steve Silver is a former sports reporter for the Las Vegas Sun and is now a lawyer in Philadelphia representing athletes in eligibility proceedings. He recently authored a chapter on due process in college sports for the forthcoming Johns Hopkins University Press textbook College Athletes’ Rights and Well-Being: Critical Perspectives on Policy and Practice. You can reach him at email@example.com or on Twitter @thelegalblitz.
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