Thursday, April 24, 2014
The scholarship players for Northwestern's football team will be voting Friday whether to unionize. As the NY Times reports, Northwestern has been fighting hard for the players to vote against the union. Many readers will recognize these anti-union tactics as common during a campaign. Indeed, the facts, which could easily be the basis for a challenge to the election if the union loses, looks like something I'd write for a Labor Law exam: for example, the coach engaging in one-one meetings (or "interrogations"?) with players; predictions (or threats?) of negative consequences if there is a union; and giving players new iPads and bowling parties (pre-planned or improper provision of gifts?). No matter the outcome of the vote, which we likely won't know for a while, this will probably drag on for some time. One upside is that the publicity given to this case will provide a good example to explain the issues surrounding the NLRB-election process. Just in time for new election rules from the NLRB!
In addition to issues under the NLRA, I would expect to see claims brought by players under other statutes. The FLSA (hello minimum wage and overtime), Title VII, OSHA, and other statutes all have definitions of "employee" as broad, or broader, than the NLRA. And those statutes will pull in public schools as well. I'd be surprised if we don't see some of these claims soon, especially if the NCAA doesn't make significant changes (e.g., the NCAA just removed restrictions on player meals after Shabazz Napier's "I go to bed starving" comment). This isn't a novel argument either. In the 1970s, an Indiana State football player unsuccessfully sought status as an employee to get workers compensation benefits after becoming a parapalegic because of an injury suffered during practice.