In a memorandum issued on January 31, 2017, the National Labor Relations Board’s General Counsel, Richard Griffin, provided a “guide for employers, labor unions, and employees that summarizes Board law regarding NLRA employee status in the university setting and explains how the Office of the General Counsel will apply these representational decisions in the unfair labor practice arena.” As we suspected last Fall, the General Counsel considers “scholarship football players at NCAA Division I Football Bowl Subdivision (“FBS”) private colleges and universities…employees under the NLRA, and therefore…entitled to the protections of Section 7 of the Act.”

Noting that the Board did not reach the question of whether scholarship football players are NLRA employees in its Northwestern decision, the General Counsel stated that:

it is important that [scholarship football players] know whether the Act’s protections extends to them, i.e., whether if they engage in concerted activity for mutual aid and protection, such activity is protected by the NLRA.

Relying upon the Board’s decisions in Boston Medical Center and Columbia University, the General Counsel concluded:

it is clear from the evidentiary record established in Northwestern University that scholarship football players at Northwestern and other Division I FBS private colleges and universities are employees under the NLRA because they perform services for their colleges and the NCAA, subject to their control, in return for compensation.

Because the General Counsel believes that “FBS scholarship football players clearly satisfy the broad Section 2(3) definition of employee and the common-law test,” they “should be protected by Section 7 when they act concertedly to speak out about aspects of their terms and conditions of employment.”

This includes, for example, any actions to: advocate for greater protections against concussive head trauma and unsafe practice methods, reform NCAA rules so that football players can share in the profit derived from their talents, or self-organize, regardless of whether the Board ultimately certifies the bargaining unit.

Although the General Counsel has taken the position that scholarship football players are employees under the Act, the General Counsel’s memo does not have the effect of “law.” Rather, the question of whether scholarship football players are employees under the NLRA is still undecided, and only the members of the NLRB can decide that question. In the meantime, private universities can expect that any unfair labor practice charge asserting that their scholarship football players are employees will be paid special attention by the current General Counsel. That being said, Mr. Griffin’s term as General Counsel ends in November of this year, at which point President Trump will have the opportunity to appoint a new General Counsel.