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The National Labor Relations Board Is Considering Whether Collegiate Student-Athletes Who Receive Athletic Scholarships are Employees Entitled to Form Unions, Jones Day Labor Blog

The National Labor Relations Board (the "Board") is considering whether to affirm, modify, or reverse Regional Director Peter Ohr’s March 26, 2014, Decision and Direction of Election in Northwestern University and College Athletes Players Association ("CAPA") (Case No. 13-RC-121359). The Regional Director previously found that student-athletes receiving athletic scholarships on Northwestern’s football team are "employees" under the National Labor Relations Act ("NLRA"), and, thus, are entitled to form a union for collective bargaining purposes. On April 24, 2014, the Board granted Northwestern’s request for review of the Regional Director’s Decision, and on May 12, 2014, the Board issued a Notice and Invitation to File Briefs to the parties as well as interested amici.

The case presents significant issues of first impression before the Board that go to the fundamental nature of the relationship between universities and matriculating students who receive grants-in-aid to cover all or part of the cost of their education. The case has potentially far reaching ramifications for intercollegiate amateur athletics, raising questions regarding the proper treatment of student athletes, not only under the NLRA but also under a host of federal and state employment, tax, workers’ compensation and other laws potentially applicable to participants in college sports. In addition, the Board has indicated it is considering possibly modifying or overruling the Board’s holding in Brown University, 342 NLRB 483 (2004), in which it held that graduate student assistants were "primarily students" and so not "employees" under the NLRA.

On July 3, 2014, 21 briefs were filed with the Board by the parties and interested amici, including ten amicus briefs filed in support of Northwestern. Jones Day authored two of the amicus briefs filed in support of Northwestern, one on behalf of the University of Notre Dame, Trustees of Boston College, and Brigham Young University, and the other brief on behalf of the Association for the Protection of Collegiate Athletes. Pursuant to the Board’s scheduling order, Northwestern and CAPA have until July 31, 2014, to file response briefs, at which time briefing to the Board will be completed.

Links to the two amicus briefs authored by Jones Day are below:

Brief of Amici Curiae Association for the Protection of Collegiate Athletes

Brief of Amici Curiae University of Notre Dame, Trustees of Boston College, and Brigham Young University

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