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From Professors to Players: When Are Students Also Employees?

By: Ceilidh B. Gao

The employment status of students has been a frequent issue at the NLRB in recent years, and advocates are currently awaiting a decision on graduate student employees in Columbia University, 02-RC-143102. In January 2016, the Board invited amicus briefs on the issue, suggesting that it may overturn the standard in Brown University, 342 NLRB No. 42 (2004), where it held that graduate students who also worked as teaching assistants were not statutory employees under the NLRA.

As we await that decision, last summer’s Northwestern University, 362 NLRB No. 167 (2015), decision reminds us of the different tacks the Board has taken in these student-employee cases. In Northwestern, the Board reviewed the Regional Director’s decision that Northwestern University’s football players were employees. The Regional Director had held that the football players could petition for a union election under the Act and indeed that the Brown University factors - which analyzed how to draw the line between “student” and “employee” - were irrelevant to the case as, unlike graduate students, the players’ football duties were so clearly not academically related.

The Board surprised observers by avoiding a ruling on the merits of the case - whether or not the football players were employees under the NLRA - and instead declining to assert jurisdiction over the matter at all. “It would not effectuate the policies of the Act to assert jurisdiction,” the Board held, and emphasized that unlike in professional sports leagues, which are widely unionized, the NCAA is composed of a mix of schools which are private institutions and schools which are public institutions. Private institutions are subject to the NLRA, while public institutions are not. This mix of institutions, the Board held, created an “inherent asymmetry” in the regulatory regimes across the schools, and “it would not promote stability in labor relations to assert jurisdiction in this case.”

The decision has been critically received by some academics. Julia Tomassetti at OnLabor writes that, “Northwestern is sparse on law,” noting that contrary to the Board’s assertion, there is legal precedent for such ‘asymmetrical’ industries. She cites Board law on medical residents as precedent for asserting jurisdiction in fields where some employers are public and beyond the reach of the NLRA. “The Board is essentially saying that the player’s union would undermine the stability of a successful employer combination,” writes Tomassetti, referring to the NCAA. The NLRB, she writes, “should not defer to an employer cartel regarding the appropriate level of exploitation needed to keep an industry flush.”

While the Board ‘punted’ the political hot potato of regulating NCAA schools as employers, commentators continue to write books and articles highly critical of the precarious work conditions of student athletes, particularly in the context of the huge advertising and ticket sales dollars they generate for schools and the NCAA. Contingent faculty have similarly drawn attention to the relationship between their work conditions and the increasingly for-profit education model, and we eagerly await a decision from the Board on whether the workers in Columbia University will be protected by the Act.

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