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Amicus Brief to NLRB regarding Unionization of Collegiate Athletes

For the National Labor Relations Board’s full consideration of unionizing student athletes, I submitted an amicus brief opposing the regional director’s decision and direction of election. That follows my submission of testimony for the hearing “Big Labor on College Campuses: Examining the Consequences of Unionizing Student Athletes” before the full United States House of Representatives Committee on Education and the Workforce on May 8, 2014. The following House and Senate leaders also submitted an amicus brief :
  • House Education and the Workforce Committee Chairman John Kline (R-MN);
  • Higher Education and Workforce Training Subcommittee Chairwoman Virginia Foxx (R-NC);
  • Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-TN);
  • Senate Health, Education, Labor, and Pensions Committee Ranking Member Lamar Alexander (R-TN);
  • Employment and Workplace Safety Subcommittee Ranking Member Johnny Isakson (R-GA); and
  • Primary Health and Aging Subcommittee Ranking Member Richard Burr (R-NC).
The Congressional brief argues that college athletes are not employees under the law and treating student athletes as employees is unworkable: As a matter of both national labor and educational policy, the Congressional Committee Members urge the Board to find that grant-in-aid scholarship football players are not employees… The profound and inherent differences between the student-university and employee-employer relationship makes employee status unworkable both as a matter of law and in practice. BACKGROUND On March 26, a NLRB Regional 13 director issued an unprecedented decision that scholarship football players at Northwestern University are “employees” under federal labor law. ARGUMENT In my brief I point out that the recent U.S. Supreme Court decision in Harris v. Quinn on June 30, 2014, involved the governmental definition of “employee” for purposes of unionization and the generally applicable First Amendment standards. The Harris court established a standard of “full-fledged” employment, determining that “partial” employment would not suffice for overcoming the central First Amendment principle laid down in that case, to wit, “the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” CONGRESSIONAL INTENT There is no showing in NLRB Region 13’s 24-page decision that Congress intended students receiving grant-in-aid to be considered employees. The decision includes absolutely no legislative history of the 1935 Act. To impute a Congressional intent would be an unwarranted, unsupported, unprecedented inference. Before the NLRB’s Region 13 decision, the 1935 National Labor Relations Act had never been interpreted to mean these athletes’ grant-in-aid scholarships constituted employment. RESORT TO LEGISLATION The full Board were to make such an unwarranted inference, the following sample piece of legislation may be necessary:


H. R. _____ To clarify the rights of grant-in-aid students under the National Labor Relations Act.

IN THE HOUSE OF REPRESENTATIVES JULY __, 2014 Mrs. _______ (for herself, Mr. _____, Mr. _____, Mr. _____, and Mr. _____) introduced the following bill; which was referred to the Committee on Education and the Workforce


To clarify the rights of grant-in-aid students under the National Labor Relations Act. 1 Be it enacted by the Senate and House of Representatives 2 of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the ‘‘Student Labor Liberty 5 Act of 2014”. 6 SEC. 2. DEFINITION OF EMPLOYEE. 7          Section 2 of the National Labor Relations Act (29 8 U.S.C. 152) is amended— 9                      (1) in paragraph (3), by inserting “any grant- 10                    in-aid student,” after “shall not include.”


Counsel for both parties, Mr. Adam and Mr. Barbour, agreed on page 43 and 44 of the transcript that the NCAA is not the joint employer. KEY DEFINITONS OF “REGULAR” & “SUBSTANTIALLY EQUIVALENT” In the National Labor Relations Act, the definition of “employee” reads: (3) The term "employee" shall include … any individual whose work has ceased … and who has not obtained any other regular and substantially equivalent employment… The terms “any other regular” and “substantially equivalent” may be important here. It is likely that Congress would not have viewed a student’s grant-in-aid as “regular” employment. It is not likely that full-fledged, full-time work as any employee of the university, such as a secretary, payroll clerk, janitor, coach, professor, maintenance specialist, et cetera would be considered “substantially equivalent.” Furthermore, a textual analysis of “any other regular” may be pertinent for the argument that the players are only temporary employees. PRECEDENT The NLRB’s line of cases including Adelphi, Leland Stanford, St. Clare’s Hospital, and Brown University were appropriately decided.  Specifically, the Board’s following reasoning in Brown University remains sound: The Supreme Court has recognized that principles developed for use in the industrial setting cannot be “imposed blindly on the academic world.” After carefully analyzing these issues, we have come to the conclusion that the Board’s 25-year pre-NYU principle of regarding graduate [read “academic”] students as nonemployees was sound and well reasoned. We look to the underlying fundamental premise of the Act, viz. the Act is designed to cover economic relationships. The Board’s longstanding rule that it will not assert jurisdiction over relationships that are “primarily educational” is consistent with these principles. The concerns expressed by the Board in St. Clare’s Hospital 25 years ago are just as relevant today at Brown. Imposing collective bargaining would have a deleterious impact on overall educational decisions... … The issue of employee status under the Act turns on whether Congress intended to cover the individual in question. The issue is not to be decided purely on the basis of older common-law concepts. … Thus, assuming arguendo that the petitioned-for individuals are employees under Section 2(3), the Board is not compelled to include them in a bargaining unit if the Board determines it would not effectuate the purposes and policies of the Act to do so. … For the reasons we have outlined in this opinion, there is a significant risk, and indeed a strong likelihood, that the collective-bargaining process will be detrimental to the educational process. ADMINISTRATIVE PROBLEMS -- PRACTICALITY The Supreme Court frequently concerns itself (such as in both Harris and Knox) with administrative problems and practicality. In Harris, the court states for example, Nor does the Abood Court seem to have anticipated the administrative problems that would result in attempting to classify union expenditures as either chargeable or nonchargeable, see, e.g., Lehnert v. Ferris Faculty Assn., 500 U. S. 507, or the practical problems that would arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions. The record of the Congressional hearing makes it plain, for example, that if the employee status foisted upon the universities in the Region 13 decision were to prevail ultimately, Stanford is prepared to cease participating in its current level of competition. The situation for walk-on players, players with expired eligibility, and players committed to play but still in high school are other practical concerns. As Counsel Alex Barbour states on behalf of Northwestern, “[M]ost of the objectives CAPA desires to achieve are not even controlled by Northwestern University… Additionally, any collective bargaining rights to collegiate football would require a complete overhaul and revamping of the existing governance structure, both at the NCAA and the Big Ten Conference level.” The imbalance issues that would accrue across NCAA sports between the 17 schools to which a rule would apply and all of the other schools would be “impractical and simply would not work,” as Mr. Barbour stated. CONGRESSIONAL HEARING The House Education and the Workforce Committee hearing examined the consequences of the recent National Labor Relations Board (NLRB) decision classifying certain student athletes as “employees” for the purposes of collective bargaining. When announcing the hearing, Chairman John Kline (R-MN) said, “Classifying student athletes as employees threatens to fundamentally alter college sports, as well as reduce education access and opportunity.” The recent National Labor Relations Board (NLRB) ruling that Northwestern University players receiving scholarships from the employer are “employees” and may form a union, has thrown athletic departments across the country into a frenzy, as they try to sort out what it means for them. But one thing is for certain: The decision opens the door to the federal government inserting more regulations between students and private institutions nationwide. One of the witnesses at the Congressional hearing was Stanford University Director of Athletics Bernard Muir, and for good reason. In California, which is not a right-to-work state, a university like Stanford stands a lot to lose from the NLRB decision. Stanford’s head football coach David Shaw has questioned what could be behind the union movement at Northwestern saying, “I'm curious what's really driving it. I've seen everything, and everything that's been asked for, my understanding is it's been provided.” To answer Coach Shaw, the United Steelworkers union is driving this whole initiative. The Steelworkers, one of the largest industrial unions in North America, are underwriting and financing the effort and have been trying to unionize students for a decade. The goal? Access to some of the millions of dollars associated with college sports. And Stanford, with its long and storied athletic history, is a prime target for the Steelworkers, with nearly 10 local union chapters in the area. Consider that unionizing means taking away students’ First Amendment freedom of expression, especially troubling in the arena of academic freedom. Section 9(a) of the Taft-Hartley Act would give the union exclusive bargaining rights. Students would have to go through the union, rather than deal directly with the school, leaving student athletes with less of a voice. Halting the communication between coaches and players over practice regimes, for example, and inserting the union representatives would not be welcome for many players. Agency fees certainly would not be appropriate, in any case. Next, consider how unionization would undermine students’ freedom of association. With the union as their exclusive bargaining representative, student athletes would be barred from joining any other association—or even another union—to represent them. Third, a union would siphon cash from students’ bank accounts, when it has been established that these students are already recipients of grant-in-aid. Moreover, once a union is established, it remains in place as the players’ monopoly representative long after those who voted for the union have graduated. Those who follow in their wake are stuck with the union, whether they want it or not. The overwhelming majority of workers in both the private sector and in government inherited collective representation in this manner. In a collegiate athletics setting, where players’ (temporary) eligibility is gone within four years, this would be an especially serious problem. There are other potential problems in allowing college athletes to unionize. The controversial 2010 decision, Specialty Healthcare, permits variation in the size of bargaining units, allowing for the creation of “micro-unions.” That means that offensive players could have a separate union from their teammates on defense. The marquee players at quarterback and running back could have a separate union from their offensive line. These types of divisions could have drastic effects on team unity, morale, and performance. The distinct impression resulting from the Congressional hearing was that, whatever grievances some players may espouse, collective bargaining is not the appropriate process for achieving any desired goals. DELETERIOUS IMPACT ON TITLE IX In the U.S. House hearing, the point was repeatedly made that practical damage would result from throwing wrenches into the processes for the essentially only two profitable collegiate sports—men’s football and men’s basketball—would cascade into the sports that lose money. The profits of those two sports fund other sports. An overall net detriment to the student athletes would result, with disparate sex/gender impacts. CONCLUSION In summary, this amicus brief supports the outcome of Brown and suggests that receiving grant-in-aid scholarship money does not rise to the level of establishing an employment relationship. In the end, unions are in it for the money. Big Labor spends more than $600 million per year on politics and lobbying. Unions are big business, and they—in this case the Steelworkers—see college athletics as another source of revenue and college students as a means to an end. The best interests of the students dictate that collective bargaining not be imposed. Northwestern’s outside counsel Alex Barbour aptly summarizes, “The model of collective bargaining that CAPA is espousing in this case is simply a Rube Goldberg contraption that would not work in the real world.” The submitted brief is below:  

AMICUS BRIEF of Aloysius Hogan for NLRB on Unionizing Student Athletes - Submitted on 7-3-2014 by HoganEsq