Current Trends in Student Labor Organizing: Student-Athletes and Graduate Students 24 th Annual...
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Current Trends in Student Labor Organizing: Student-Athletes and Graduate Students 24 th Annual Legal Issues in Higher Education Conference October 13,
Current Trends in Student Labor Organizing: Student-Athletes
and Graduate Students 24 th Annual Legal Issues in Higher Education
Conference October 13, 2014 Jeffrey L. Hirsch //
[email protected] Hirsch Roberts Weinstein LLP 24 Federal
Street, 12 th Floor Boston, MA 02110
Slide 2
Agenda Overview of NLRB Student-Athlete Organizing Graduate
Student Update Student Athletes and Challenged NCAA Rules on
Revenue 2
Slide 3
Overview of Current NLRB Members 3 Mark Gaston Pearce Chairman
of the NLRB Appointed April 7, 2010 Nancy J. Schiffer Appointed
August 2, 2013 Kent Y. Hirozawa Appointed August 5, 2013
Slide 4
Overview of Current NLRB Members 4 Philip A. Miscimarra
Appointed August 7, 2013 Harry I. Johnson, III Appointed August 12,
2013
Slide 5
Students or Employees? 5 Students or Employees? NLRA 2(3)
Employee Northwestern University Case No. 13-RC-121359 Labor
Organization: College Athletes Players Association (CAPA)
Representation Petition filed with NLRB Region 13 on January 28,
2014 Petition sought to represent All football players receiving
grant-in-aid athletic scholarship from Northwestern University (See
Exhibit 1.) Approximately 85 individuals
Slide 6
Positions 6 Position of Petitioner: Football players receiving
great- in-id scholarships are employees within meaning of NLRA
Section 2(3) (See Exhibit 2.) Position of Northwestern University,
Football players are not employees, football players are akin to
graduate students NLRBs Brown University, 342 NLRB 483 2004
decision, who were deemed not to be employees. (See Exhibit 3.)
Alternatively, Northwestern contends that the players are only
temporary employees not eligible for collective bargaining.
Slide 7
Background Facts 7 NU has about 8,400 undergraduate students
NCAA member NU has 19 varsity sports rated as Division I, with
about 500 students participating each year NU Football program
Staff: Head Coach; Director of Football Operations, Director of
Player Personnel, Directors of Player Development, 9 full-time
Assistant. Coaches; 4 Graduate Assistant Coaches, 2 full-time video
staff employees, 2 Administrative Assistants, various interns. 112
players in total 85 Scholarship players received football
grant-in-aid scholarships that pay for tuition, fees room, board
& books = $61,000 per year
Slide 8
Football Players Subject to Special Rules 8 Freshman and
Sophomores required to live on campus in dorms Prior permission for
outside employment Required to disclose motor vehicle information
Required to comply with social media policy, restrictive postings
on Twitter, Facebook, Instagram. Prohibits player media
interactions, without prior approval. Prohibited from swearing in
public Subject to strict drug and alcohol testing by NU, NCAA and
Big Ten
Slide 9
Football Players Time Commitment 9 August training camp
6:30am-8:00am: Training room 11:00am-12:00pm: Player walk through
(scripts plays) 12:00pm-1:00pm: Lunch 1:00pm-4:00pm: Additional
required meetings 4:00pm-6:00pm: Additional required practice
6:30pm-8:00pm: Team dinner 8:00pm-10:00pm: Additional position and
team meetings 10:30pm: Lights out
Slide 10
Football Program Revenue (2003-2012) 10 NU Football program
generated $235m in revenue and had total expenses of $159m For
2012-2013 academic year revenue of $30.1m and total expenses of
$21.7m Profit from football is used to subsidize NUs non-revenue
generating sports
Slide 11
NLRB Regional Directors Decision 11 Burden of Proof rests with
the party seeking to exclude an otherwise eligible employee from
the coverage of the Act Therefore, NU has the burden of proof. NLRB
Regional Directors Decision of March 26, 2014: Players receiving
scholarships from NU are employees under 2(3) of NLRA
Representation election ordered. (See Exhibit 4.) Election held
April 25, 2014 ballots impounded by NLRB
Slide 12
NLRB Regional Directors Decision 12 Employee - The applicable
legal standard 2(3) defines employee as any employee U.S. Supreme
Court has held that applying the broad definition requires
consideration of the common law definition of employee NLRB v. Town
& Country Electric, 516 U.S., 85, 94 (1995) common law: an
employee is a person who performs services for another under a
contract of hire, subject to the others control or right to
control, and in return for payment.
Slide 13
NLRB Regional Directors Decision 13 As the record demonstrates,
players receiving scholarships to perform football related services
for the employer under a contract for hire in return for
compensation are subject to the employers control and are therefore
employees within the meaning of the Act. Perform services for the
benefit of the employer for which the players receive compensation?
Football team generated gross revenue of $235m 2003-2012 TV
contracts Ticket sales Merchandise Other benefits such as enhanced
alumni giving Perform services throughout the calendar year
Slide 14
NLRB Regional Directors Decision 14 Scholarships are of
economic value up to $76,000 per calendar year for 4-5 years (over
$250,000). No paycheck but substantial economic benefit received in
exchange for playing football Scholarship was presented in a tender
requiring each play to sign seen as an employment contract Head
Coach has great discretion regarding reducing or cancelling a
players scholarship
Slide 15
NLRB Regional Directors Decision 15 Subject to the employers
control in the performance of their duties as football player
Players are under strict and exacting control From training camp-
50-60 hours/week Location, duration and manner in which players
carry out football duties are within control of football coaches
Coaches maintain control via NCAA and team rules Potential loss of
scholarship for violating rules is significant control Scholarship
players are employees walk-on players (non-scholarship) are NOT
employees, they do not receive compensation for athletic services
performed. NOTE: Regional Director- if a walk-on were to receive a
football scholarship at a later point, that player then would be
deemed as employee Brown University Not Applicable
Slide 16
Brown University Case 16 Brown University 342 NLRB 483 (2004)
(See Exhibit 3.) established 4 factors in ruling that graduate
assistants were not employees: The status of graduate assistants as
students; The role of graduate assistants in graduate education;
The graduate assistants relationship with the faculty; The
financial support they receive to better Brown University.
Slide 17
Application of Brown University Case 17 In Brown University,
Board concluded that the overall relationship between graduate
assistants and the University was primarily educational, rather
than economic Regional Director found statutory test inapplicable
since football players duties were unrelated to their academic
studies Compared to graduate assistants, whose teaching and
research duties were inextricably related to their graduate degree
requirements Grant-in-aid scholarship players were not primarily
students Training camp 50-60 hour/week 1 40-50 hours/week of
football v. 20 hours attending class after training camp
Slide 18
18 Grant-in-aid scholarship Program - Athlete duties do not
constitute core element of the education degree requirements No
academic credit received for playing football Not required to play
football in order to receive their undergraduate degree Faculty
members DO NOT supervise grant-in-aid scholarship players athletic
duties Academic faculty members do not oversee players athletic
duties Football coaches (who are not academic faculty) oversee the
players athletic duties. Grant-in-aid scholarships are not
financial aid Football scholarships are only offered to player in
exchange for providing an athletic service to the University
Football scholarships can be immediately cancelled if a player
withdraws from the team Need based financial aid is not provided in
exchange for any type of service NLRB Regional Directors
Decision
Slide 19
19 Grant-in-aid scholarship players are not temporary employees
under the Act General NLRB Test: Does the individual have an
uncertain tenure? Indefinite tenure leads to eligibility to vote
NLRB v. New England Lithographic 589 F. 2d 29 (1 st Cir. 1978) No
substantial expectancy of continued employment with clear notice,
leads to finding of temporary employee, not eligible to vote in
NLRB representation election. NLRB Regional Directors Decision
Slide 20
20 Regional Director relied on NLRB decision in Boston Medical
Center, 330 NLRB 152 (1999) to find the grant-in-aid scholarship
players were not temporary employees In Boston Medical Center, the
Board found that the house officers (medical residents) worked for
a finite period of 3-7 years of more. Northwestern University
scholarship players have a tenure of 4 or 5 years not temporary
employees NLRB Regional Director Concluded Petitioned for Unit was
Appropriate Unit
Slide 21
NLRB Regional Directors Decision 21 Regional Director also
relied on Specialty Healthcare and Rehabilitation Center of Mobile
35 NLRB No. 83, Slip pp. at 1 (2011) enfd.sub nom. Kindred Nursing
Center East, LLC v. NLRB 727 F. 3d 552 (6 th Cir. 2013)
Overwhelming community of interest? Scholarship players and
walk-ons? Note about Specialty Healthcare: NLRB held that
petitioning unions have great discretion in seeking to identify and
represent a bargaining unit. Therefore, private sector employers in
all industries face a difficult task opposing a unions proposed
bargaining unit
Slide 22
Northwestern Universitys Position 22 NU contended the proposed
bargaining unit was not appropriate unit since (1) scholarship
players were not employees and (2) the proposed unit excluded
walk-ons who shared on overwhelming community of interest with the
scholarship players.
Slide 23
Northwestern Universitys Position 23 Regional Director
improperly placed burden of proof on Northwestern (Northwestern was
not seeking to exclude from the Acts coverage individuals otherwise
determined to be eligible employees) The threshold issue is whether
the scholarship student-athletes are otherwise eligible employees
Football program is part of Northwesterns educational experience.
Northwestern has 19 varsity athletic programs Northwestern focuses
on students ability to succeed academically Scholarship offer is on
award of financial aid, not an offer of employment Commitment to
education of student-athletes is exemplified by the wide range of
academic services offered. Players pursue over 20 majors Maintain
GPA over 3.00 Graduate at a rate of 99%
Slide 24
Northwestern Universitys Position 24 Northwestern contends that
Regional Director ignored the significance of those facts Those
facts demonstrate that the relationship between Northwestern and
its student-athlete is primarily educational not economic.
Northwesterns position is consistent with Congresss determination
in enacting Title IX, that the opportunity for students to
participate in intercollegiate athletics is a vital component of
educational development. (See Exhibit 5.) Northwestern University
brief to the Board on Review of Regional Directors Decisions and
Director of Election, pp. 7-8, citing Mansourian v. Bd. Of Regents
of Univ. of Calif. At Davis 816 F. Supp. 2d 869 (E.D. Cal.
2011)
Slide 25
Northwestern Universitys Position 25 All Northwestern Students
- not only scholarship student- athletes - are covered by conduct
rules, including off-campus housing, hazing, gambling, drug and
alcohol use, academic dishonesty, possession or use of weapons
Student run organizations- fraternities, sororities, affinity
groups - student government - all must sign the behavioral
agreement prior to being permitted to travel as a representative of
Northwestern Those rules do not create employment scholarship Role
of NCAA important to acknowledge NCAA policies and rules apply to
scholarship athletes and non- scholarship athletes alike NCAA is an
independent organization and Northwestern, like other institutions,
is bound by NCAA rules
Slide 26
Northwestern Universitys Position 26 Regional Directors
discussion of alleged control misunderstands the nature of
inter-collegiate sports Purpose of study hall is not to control
student athletes lives Study halls prepare student athletes for
academic achievement and assist in the transaction from high school
to college academics.
Slide 27
Northwestern Universitys Position 27 Academic scheduling takes
procedures over football scheduling Football practice was moved to
early mornings to minimize class schedule conflicts Students with
class schedule conflicts are allowed to leave practice early to
attend class on time Student-athletes spend at least 20 hours per
week in class and additional time preparing and studying The
academic year is twice as on long as the football season
Slide 28
Northwestern Universitys Position 28 Brown University (See
Exhibit 3.) is controlling and should not be overruled NLRB v.
Yeshiva University 444 U.S. 612 (1980) For the proposition that
institutions of higher education hold a unique position in American
culture, and academic settings differ vastly from industrial
settings in structure and purpose. NLRB v. Yeshiva, supra at.
680-81 Northwestern cited Yeshiva: The predominant policy [of a
university] normally is to operate a quality institution of higher
learning that will accomplish broadly defined educational goals
within the limits of its financial resources. The business of a
university is education. (.) Id. at 688 (emphasis added)
Slide 29
Northwestern Universitys Position 29 Universities have many
educational programs or activities- intercollegiate athletics is
only one such program. The opportunity for students to participate
in intercollegiate athletics is a vital component of educational
development Mansourian, 816 F. Supp. 2d at 874 Students are
admitted into not hired by a university
Slide 30
Historical Reminder 30 NLRB first asserted jurisdiction over
private, non-profit colleges and universities Cornell University
183 NLRB 329 (1970) Adelphi University, 195 NLRB 639 (1972) and The
Leland Stanford Junior University 214 NLRB 621 (1974) the Board
held that graduate teaching and research assistants were primarily
students and not employees within the meaning of Section 2 (3) of
the Act.
Slide 31
Historical Reminder 31 In New York University 332 NLRB 1205
(2000), the Board overruled 25 years of precedent and held that
graduate assistants who were enrolled as students at NYU and
performed research and teaching duties were employees That holding
prevailed from 2000-2004 It took 4 years for the NLRB to reverse
itself in Brown University.
Slide 32
See Exhibit 6 (CAPA Reply Brief) and Exhibit 7 (Northwestern
Reply Brief) NLRB invited amicus briefs Over 20 amicus briefs
received Questions posed by NLRB: What test of employee status
under NLRA should be used? Should the NLRB adhere to, modify, or
overrule or even apply Brown University Appeal to NLRB 32
Slide 33
Selected Organizations Filing Amicus Briefs 33 National
Collegiate Athletic Association (See Exhibit 8.) American Council
on Education and other High Education Associations (See Exhibit 9.)
Higher Education Council of the Employment Law Alliance (See
Exhibit 10.) National Right to Work Legal Defense and Education
Foundation (See Exhibit 11.) AFL-CIO (See Exhibit 12.) Members of
the United States Senate Committee on Health Education Labor and
Pensions and the United States House of Representatives Committee
on Education and the Workforce (See Exhibit 13.) Major League
Baseball Players Association, National Hockey Players Union, Major
League Soccer Players Union, National Football Players Association,
National Basketball Players Association (See Exhibit 10.)
Slide 34
Selected Organizations Filing Amicus Briefs 34 Brown
University, Columbia University, Cornell University, Dartmouth
College, Harvard University, University of Pennsylvania, Princeton
University, Massachusetts Institute of Technology, Yale University,
Associates of American Universities National Association of
Collegiate Directors of Athletics and Division 1A Athletic
Directors Association Baylor University, Rice University, Southern
Methodist University, Stanford University, Tulane University,
University of Southern California, Vanderbilt University, Wake
Forest University We await the NLRBs decision.
Slide 35
Graduate Student Update 35 Recent Historical Overview: New York
University 332 NLRB 1205 (2000) held that graduate student
assistants were employees eligible to organize NYU and UAW
negotiated one contract 2002-2005 Brown University 342 NLRB 483
(2004) overruled NYU and returned to the pre-NYU precedent that
graduate students were not employees, since their relationship with
the institution was primarily educational, not economic. Following
Brown decision, NYU ceased bargaining
Slide 36
Graduate Student Update 36 Prior NLRB appointees have invited
unions to bring cases to challenge the Brown University decision
New York University v. G.S.O.C./U.A.W. NLRB Case No. 02-RC- 023481
NLRB remanded case to Region 2 Regional Director, October 25, 2010
356 NLRB No. 7 Polytechnic Institute of New York University v.
Internal Union, United Automobile Aerospace, and Agricultural
implement Workers of America (U.A.W.) NLRB Case No.
29-RC-012054
Slide 37
Graduate Student Update 37 June 2012- NLRB invited briefs from
interested parties on question of whether graduate student
assistants may be statutory employees within the meaning of Section
2 (3) of the NLRB. Numerous organizations filed amicus briefs the
usual suspects November 26, 2013 NYU and UAW reached a voluntary
agreement to hold an election among NYU and NYU-Poly graduate
employees. Election to be supervised by the American Arbitration
Association
Slide 38
Graduate Student Update 38 December 22, 2013 American
Arbitration Association announced results of supervised election
among NYU graduate student employees 98.4% of those who cast
ballots voted in favor of union representation 630 voted 620 yes 10
no Included 1,200 graduate student employees NOTE: voter turnout is
always a key factor Once again, made NYU the only private
university with unionized graduate student employees Landscape in
public colleges and universities is different State Labor Laws
govern
Slide 39
Student Employee Graduate Unions Are More Common 39 A few
examples: University of Connecticut University of California
University of Massachusetts And many more Predictions for private
colleges and universities?
Slide 40
NCAA Rules Barring Student- Athletes from Receiving Revenue 40
Edward OBannon, et al. v. National Collegiate Athletic Association,
Electronic Arts Inc.; and Collegiate Licensing Company, Docket No.
C-09-3329 CW, August 8, 2014 (See Exhibit 15). Current and former
college student-athletes challenged the set of rules that ban
student-athletes from receiving a share of the revenue that the
NCAA and member schools earn from the sale of licenses to use the
student-athletes names, images, and likenesses in videogames, live
game telecasts, and other footage. Student-Athletes Position: The
student-athletes contended that the rules violate the Sherman
Antitrust Act
Slide 41
NCAA Rules Barring Student- Athletes from Receiving Revenue 41
NCAA Position: NCAA denies any antitrust violations and claims that
restrictions on student- athlete compensation are needed to uphold
its educational mission and protect the popularity of collegiate
sports Background on NCAA Founded in 1905 by presidents of 62
member colleges and universities 2014- 1,100 member institutions
NCAA constitution: Seeks to initiate, stimulate and improve
intercollegiate athletics programs for student-athletes and to
promote and develop educational leadership, physical fitness,
athletics excellence and athletics participation as a recreational
pursuit (NCAA Division I manual at 15)
Slide 42
NCAA Rules Barring Student- Athletes from Receiving Revenue 42
Division I membership requires schools to sponsor at least fourteen
varsity sports teams, including football and to distribute a
baseline amount of financial aid to student- athletes.
Approximately 350 of 1,100 NCAA member schools are in Division I
Electronic Arts Inc & Collegiate Licensing Company Electronic
Arts Inc. (EA) is a corporation which develops and manufactures
videogames. EA created and sold an annual NCAA branded college
football videogame each year between 1997-2013. NCAA created and
sold an annual NCAA branded college basketball videogame each year
from 1998-2010.
Slide 43
NCAA Rules Barring Student- Athletes from Receiving Revenue 43
Professional athletes often sell group licenses to use their names,
images, and likenesses in live game telecasts, videogames, game
rebroadcast casts, advertisements and archival footage. Student-
athletes contend that they could also sell group licenses for use
of their names, images and likenesses, except for NCAA rules. NCAA
entered into a 1994 licensing agreement with CBS granting rights to
telecast the Division I mens basketball tournament every year from
1995- 2002. Licensing agreement contained name and likeness
provision.
Slide 44
NCAA Rules Barring Student- Athletes from Receiving Revenue 44
Network had the right to make appropriate references to NCAA and
universities and colleges of the teams, the sites, the games and
the participants in and others identified with the games. Such
contractual provisions are common and have economic value to
television networks. There is a market for group licenses
Slide 45
NCAA Rules Barring Student- Athletes from Receiving Revenue 45
District Court found that, absent the challenged NCAA rules, teams
of FBS football and Division I basketball players would be able to
create and sell group licenses for the use of their names, images
and likenesses in live game telecasts. Slip Op. at 16. (See Exhibit
15.) District Court also found that a submarket would exist for
group licenses to use student-athletes names, images, and
likenesses in videogames if student-athletes were permitted to
receive compensation for such licenses. District Court concluded
that NCAA rules violated antitrust law by agreeing with its member
schools to restrain their ability to compensate Division I mens
basketball and FBS football players any more than the rules allow.
Court noted that these restraints and perceived inequities in
college athletics and higher education in general, could be better
addressed as a policy matter by reforms by NCAA, member schools, or
Congress.
Slide 46
Predictions and Questions? 46 Jeffrey L. Hirsch //
[email protected] Hirsch Roberts Weinstein LLP 24 Federal
Street, 12 th Floor Boston, MA 02110