NLRB Invites Briefs on Whether Northwestern University’s Football Players Are Employees under the NLRA | Practical Law

NLRB Invites Briefs on Whether Northwestern University’s Football Players Are Employees under the NLRA | Practical Law

The National Labor Relations Board (NLRB) granted Northwestern University's request for review and invited amicus briefs on the NLRB's Regional Director for Region 13's decision holding that the University's grant-in-aid scholarship football players are employees under the National Labor Relations Act (NLRA).

NLRB Invites Briefs on Whether Northwestern University’s Football Players Are Employees under the NLRA

by Practical Law Labor & Employment
Published on 13 May 2014 • USA (National/Federal)
The National Labor Relations Board (NLRB) granted Northwestern University's request for review and invited amicus briefs on the NLRB's Regional Director for Region 13's decision holding that the University's grant-in-aid scholarship football players are employees under the National Labor Relations Act (NLRA).
On April 24, 2014, the panel (Board) heading the NLRB's judicial and election functions granted Northwestern University's request for review and invited amicus briefs on the NLRB's Regional Director's decision holding that the University’s grant-in-aid scholarship football players are employees under Section 2(3) the NLRA (29 U.S.C. § 152(3)) and directing an election to take place (see Legal Update, Scholarship Players for College Football Team are Employees under the NLRA: NLRB Region 13). NLRB representatives from Region 13 conducted the election on April 25, 2014, but impounded the ballots.
On May 12, 2014, the Board found that the Regional Director's decision in Northwestern University, No. 13-RC-121359, (Mar. 26, 2014) raised substantial issues warranting review. The Board also invited the parties and interested amici to file briefs and submit evidence to assist it in addressing the following questions:
  • What test should the Board apply to determine whether grant-in-aid scholarship football players are employees under the NLRA, and what is the proper result here, applying the appropriate test?
  • If the Board’s decision in Brown University, 342 N.L.R.B. 483 (2004) were applicable to this case, should the Board adhere to, modify or overrule the test of employee status applied in that case? If so, on what basis?
  • What policy considerations are relevant to the Board’s determining whether grant-in-aid scholarship football players are employees under the NLRA and what result do they suggest here?
  • To what extent, is the existence or absence of determinations regarding employee status of grant-in-aid scholarship football players under other federal or state statutes or regulations relevant to whether those players are employees under the NLRA?
  • To what extent are the employment discrimination provisions of Title VII, in comparison to the anti-discrimination provisions of Title IX of the Education Amendments Act of 1972, relevant to whether grant-in-aid scholarship football players are employees under the NLRA?
  • If grant-in-aid scholarship football players are employees under the NLRA, to what extent, should the Board consider, in determining:
    • the parties' collective bargaining obligations;
    • the existence of outside constraints that may alter the ability of the parties to engage in collective bargaining for certain terms and conditions of employment; and
    • what impact should these constraints have on the parties’ bargaining obligations?
  • In the alternative, should the Board recognize grant-in-aid scholarship football players as employees under the NLRA, but preclude them from being represented in any bargaining unit or engaging in any collective bargaining, as is the case with confidential employees under Board law?
Parties and amici must submit briefs electronically by June 25, 2014 using the NLRB E-Filing System. The parties' briefs should not exceed 50 pages and amici briefs should not exceed 30 pages.