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NLRB memo puts college football players in union ‘red zone’

By   /   February 9, 2017  /   News  /   No Comments

On Feb. 1, thousands of high school seniors across the country signed their names to letters of intent to join one of 125 elite college football programs.

According to a memo that went out one day earlier, more than 350 of the players who signed with 17 private Football Bowl Subdivision schools will step onto campus next year not just as student-athletes, but as employees of their universities.  

Photo credit: NLRB

‘PARTISAN AGENDA’: Critics of NLRB General Counsel Richard Griffin say he’s pushing a pro-union position on his way out the door. He is scheduled to leave office in November.

National Labor Relations Board General Counsel Richard Griffin sent the memo to the board’s regional directors, stating unequivocally that “we conclude that scholarship football players in Division I FBS private sector colleges and universities are employees under the [National Labor Relations Act], with the rights and protections of that Act.” 

In 2015, the NLRB denied Northwestern University football players petition to unionize over jurisdictional limits — while Northwestern is a private university, every other school in the Big 10 is public. This effectively left a live ball on the field.

RELATED: Memo says college football players are employees

Now the NLRB is scooping it up and running, and football players at private institutions, like all other employees covered by the National Labor Relations Act, can file unfair labor practice charges and re-open the possibility of collective bargaining.

‘A dangerous slope’

The dubious timing of Griffin’s memo was not lost on Jon Runyan, a football standout at the University of Michigan, a 14-year NFL veteran and currently the NFL’s vice president of policy and rules administration.

“That’s sure a dangerous slope,” he said of the talk about organizing a college football players’ union.

PHOTO CREDIT: mgoblue.com

NLRB AND FBS: Former U-M and NFL lineman-turned-Congressman Jon Runyan says the NLRB should stay out of college football.

The son of a Flint, Mich., auto worker and NFL Players Association member, Runyan understands unions about as well as he does football.

Runyan also served in the U.S. House of Representatives from 2011 to 2015, making the two-term New Jersey Republican uniquely positioned on Capitol Hill when the Northwestern football situation picked up steam.  

“My dad was in the United Auto Workers union forever. And obviously, being the only athlete at that time who was a member of Congress, I was well-prepared,” Runyan told Watchdog.org. “And my question was always to anyone, ‘At the end of the day this is all about money, and the government’s going to want their part. What does the IRS have to say about all of this?’”

He says no one could answer that question, not even when asking about his own son, who committed to play football at Michigan in 2013.

“My son is an out-of-state student attending the University of Michigan. It’s more than $50,000 a year,” said Runyan. “If you unionize them and you give them a quarter of a million dollar scholarship and now you want to compensate them, they’re going to have to pay income tax on their scholarship and any stipend you give them. So how big of a stipend are you going to have to give them so they can pay their taxes on the scholarship?”

CBSSports.com did some number crunching in 2014 to answer that question. The analysis used estimates of 20 percent additional cost to actual salaries due to benefits such as pensions and workers’ compensation. It adds up to $1.2 million per cycle of football scholarships:

Without exact cost of attendance figures, the next-closest thing is the average FBS private school scholarship of $40,152, according to U.S. News and World Report’s “Best Colleges” rankings.

Twenty percent of that is $8,030. That number times 85 scholarship players equals $682,550 per year during eligibility, with the promise of post-career insurance at $510,000 annually ($6,000 x 85).

And while all men are created equal, all football players are not.

Runyan doesn’t see a collective bargaining agreement harnessing the different skill levels and positions of 85 individual players.

“At some point everybody’s going to say, ‘It’s all equitable, everyone’s getting $20,000 a year,’” he posed. “But the kid that’s a three-time All American and the 85th kid on the roster are both getting $20,000? Now we’ve got a problem.”

‘All union partisans’

Don Dotson, who chaired the NLRB from 1983 to 1987, agrees that unionization is not good policy for college athletics, nor is it in the public interest.

Despite the commercialization of college athletics, they are or should be treated as students,” Dotson told  Watchdog.org, adding that the intent and timing of Griffin’s memo are clear: “To call attention to his pro-union position and to keep the issue alive.”

It’s an M.O. with which Dotson is all too familiar. Upon confirmation to the board in 1983, the longtime labor relations lawyer saw how aggressively pro-union the NLRB had become under President Jimmy Carter and tried to “return the board to middle ground,” with less government involvement.

Dotson found nominal success. A 1985 New York Times article cited “more than a dozen major rulings reversing decisions made by Carter administration appointees” and an AFL-CIO study lamented that under Dotson, “employers have won 57 percent of contested labor board cases, as against 16 percent in 1974-76.”

But Dotson also became Big Labor prey. In the same New York Times article, an AFL-CIO lawyer said the Dotson-led board has “proved itself incapable of impartiality,” has an ”anti-union bias” and ”has proceeded to systematically subvert the purposes of the law.”

“It has become little more than a legal aid society, organizing arm and harassment tool for unions.” — former NLRB Chairman Don Dotson

Since his retirement in 1987, Dotson has watched the progression of what he calls systemic problems within the NLRB, starting with the personnel.

“NLRB members have mostly been career government types or academics, all union partisans and ignorant of what goes on in ‘the real world,’” he said.

That includes Griffin, whose resume boasts a long stretch as lawyer for the International Union of Operating Engineers and nearly two decades on the board of directors for the AFL-CIO Lawyers Coordinating Committee. An appointee of President Barack Obama, Griffin has had favorable winds at his back.

In the face of declining union numbers, fast food employees and college football players seemed like low-hanging fruit to Big Labor and its NLRB allies. They were looking to bolster private-sector membership that sank to just 6.4 percent in 2016, well below the 16.8 percent in 1983 — when government started tracking the numbers.

The NLRB, however, may not be able to escape the winds of change blowing through Washington.

President Donald Trump has the opportunity to fill two vacant seats on the five-member NLRB, and replace Griffin when his term end in November.

If he lasts that long.

Incensed by the Northwestern memo, two congressional leaders issued a scathing rebuke and called for Griffin to “abandon his partisan agenda or step down immediately.”

House Education and Workforce Committee chair Virginia Foxx (R-N.C.) and Rep. Tim Walberg (R-Mich.), who chairs the Subcommittee on Health, Employment, Labor and Pensions also said the decision “would have devastating consequences for students and academic institutions, and it is just the latest in Griffin’s long-history of pushing a pro-union agenda.”

The lawmakers pointed specifically to Griffin’s 2014 push to expand the “joint-employer” standard by lumping corporate franchisors and franchisees into a single employer. Putting all management parties under one roof makes a bigger target for labor complaints and collective bargaining. With a huge hand from the Service Employees International Union and its “Fight for $15” movement, the NLRB has applied this standard in numerous high-profile cases brought by McDonald’s employees.

And while McDonald’s has dominated the joint employer discussion, college football is also testing the legal waters. In a class-action lawsuit filed last fall, former USC linebacker Lamar Dawson claims he and other players were jointly employed by the university, the PAC 12 Conference and the NCAA, and deserve back pay.

Walberg’s committee is slated to take up these and other agency maneuvers during a Feb. 14 hearing.

In Dotson’s view, wholesale change is a tall order that no one has been able to accomplish, but the window is open and the clock is ticking.

“I don’t know what the committee has in mind, but amendments and nibbling around the edges won’t do much in the long run. Appointments will not begin to solve the systemic problems of the NLRB,” he said. “A case has been made for years to replace it with a fairer, less adversarial scheme. It has become little more than a legal aid society, organizing arm and harassment tool for unions. I don’t know that the chance to act will ever be better.”

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Kathy Hoekstra is the regulatory policy reporter for Watchdog.org. Before joining Watchdog, she was a senior communications manager and Michigan state director for Job Creators Network, an advocacy organization that focuses on employee education. She has also been a TV news reporter and anchor, a contributor to the Detroit News and occasional guest-host for Frank Beckmann on WJR Radio in Detroit, and was an investigative reporter for the Mackinac Center for Public Policy. She lives in Michigan and is a member of Investigative Reporters and Editors.