For today, a recent memo sent out by the National Labor Relations Board means Twitter users will be treated to the unfiltered thoughts of private school college athletes; for the future, it means those athletes might actually get their just due.
According to a ruling obtained by ESPN via a Freedom of Information Act request, the National Labor Relations Board ruled that the 17 private colleges competing in the FBS do not have the right to limit athletes’ use of social media. The schools must now allow their athletes to openly post what they want on social media, discuss health and safety, and have access to the media. You can read the memo in full at Above The Law.
The NLRB’s decision to weigh in on the charge means the board is now an avenue for those seeking compensation for college athletes. While the ruling would only affect how private schools operate, this would include major college athletics programs such as Notre Dame, Duke, Stanford, and Miami.
Prior to the NLRB’s ruling, players were forced to either take their issues to the antitrust court system or the school, conference, or NCAA. Now, with the NLRB stepping in and treating the athletes like employees, the door has been opened for the board to hear future complaints regarding the payment of players. The first footnote in the board’s ruling made clear that the NLRB is more than open to thinking about the athletes as employees rather than student-athletes:
1 We assume, for purposes of this memorandum, that Northwestern’s scholarship football players are statutory employees.
The NCAA issued the following response, per The L.A. Times’ Nathan Fenno, rejecting the NLRB’s stance that athletes at their member institutions are employees:
The footnote in the associate counsel’s memo does not reflect a binding position of the NLRB. Indeed, by its language, it assumes a posture that is a hypothetical. The NLRB previously decided that it would not exercise jurisdiction regarding the employment context of student-athletes and their institutions. Make no mistake — student-athletes are not employees under the law, nor in the manner in which they engage with their schools.
The catalyst for the NLRB issuing this particular memo was a charge brought by labor lawyer David Rosenfeld in 2015. Rosenfeld called into question Northwestern’s implementation of the Football Handbook, a set of rules and guidelines that stipulated what the players could and could not do, such as post to social media.
This charge was separate from the Northwestern football team’s attempt to unionize, which led to NLRB Regional Administrator Peter Ohr ruling that athletes at private colleges were in fact employees, but was later scuttled when the NLRB decided it would not take jurisdiction over a potential players union at Northwestern. Ohr’s decision that the players were employees remained intact, though, and allowed Rosenfeld’s charge to achieve the result that was revealed today. The NLRB ruled that sections like the one below on suggested social media behavior were “unlawfully overbroad.”
Northwestern student-athletes should be very careful when using online social networking sites and keep in mind that sanctions may be imposed if these sites are used improperly or depict inappropriate, embarrassing, or dangerous behaviors.
The NLRB decision also means that those covering college sports at one of the 17 universities will no longer be required to go through sports information directors to schedule five-minute interviews with a player. Previously, the private school athletic departments, like their public school counterparts, mandated that all athlete interviews go through their office. The old ruling states as much:
You should never agree to an interview unless the interview has been arranged by the athletic communications office. All media request for interviews with student athletes must be made through athletic communications. If you are contacted directly by the media (this includes The Daily Northwestern or any other student media outlet), you should politely, but firmly, redirect the reporter to the athletic communications office.
Northwestern’s rulebook on all matters has since been revised, with the section on speaking with the media:
As responsible student athletes, you may directly speak with members of the media if you choose to do so. If you are contacted directly by the media (this includes The Daily Northwestern or any other student media outlet), you have the option of referring the media representative to the athletic communications office for a response or to personally speak with the media representative.
Regarding the NLRB’s future role in the fight against the NCAA’s faux-amateurism, it should be noted that players or even those involved with the university do not have to be the ones to file the charges.