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Northwestern NLRB student-athlete ruling spotlights school employment practices

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Northwestern University's exposure to employment practices liability could broaden significantly even as it battles with the National Labor Relations Board over whether scholarship student-athletes qualify as employees.

Last week, Northwestern asked the full NLRB to overturn a regional ruling that the school's football players who receive scholarships are employees under the National Labor Relations Act in their efforts to form a union.

Allowing football student athletes to unionize “would have a chaotic impact” on the sport and the respective universities' administration of the sport” due to the “patchwork” of federal and state labor laws that govern Division I football universities, Northwestern said in its appeal.

Among the 126 schools Division 1 competing with Northwestern in the NCAA's Football Bowl Subdivision, only 17 are private universities and therefore within the NLRB's jurisdiction.

The remaining universities are publicly funded, and governed by state labor laws, Northwestern noted in its appeal.

Meanwhile, the athletes are to vote April 25 on forming a union, according to a Labor Relations Board spokesperson.

As long as NLRB regional director Peter Sung Ohr's March 26 ruling stands, experts say the university could be subject to additional liability under the federal labor relations law, particularly over its enforcement of heavily restrictive student-athlete agreements.

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In light of recent NLRB rulings regarding employees' protected activities, “the problem that Northwestern and a lot of other colleges are going to run into is that their rules on student-athletes' social media use and other communications would almost certainly be viewed as far too overbroad, in terms of what the athletes are restricted from doing,” said Bradley S. Shear, Bethesda, Md.-based managing partner at Law Office of Bradley S. Shear L.L.C.

In addition, experts said scholarship student-athletes at Northwestern and other universities could use the regional ruling as the basis of civil lawsuits seeking employment rights and protections under other federal and state labor laws, including those dealing with workplace bias, safety, leaves of absence, privacy and disability.

“If you look a bit further out on the horizon, there's no question in my mind that there will be attempts to use the ruling's logic to argue that student-athletes should be treated as employees under other labor statutes,” said Terence McCourt, a Boston-based shareholder and chairman of Greenberg Traurig L.L.P.'s labor and employment practice.

For example, universities could be exposed to claims under Title VII of the Civil Rights Act if athletes believe they are disciplined disparately by their coaches according to their race, ethnicity or religion, said Brad Livingston, partner and co-chair of Chicago-based Seyfarth Shaw L.L.P.'s labor relations practice group.

“What happens if a coach disciplines one player for a certain rules violation, and then disciplines a second player differently for the same violation? If those players are of different races or ethnic backgrounds, that could give rise to a Title VII claim,” Mr. Livingston said.

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Student-athletes seeking employment protections likely would have to file separate suits under each specific law, due to variations in the statutes' analysis for the application of “employee status,” experts say.

“In every case, the court would have to interpret the standards under whichever law is in question based on the very specific circumstances of each group of athletes,” said Stephanie Gournis, a Chicago-based partner at Drinker Biddle & Reath L.L.P.

Consequently, experts say private universities, including Northwestern, could face concurrent multiple suits, in some cases without the safety net of insurance.

Observers say most EPLI policies — including those designed for universities — do not cover defense costs and other losses related to alleged violations of many of the federal and state labor laws under which student-athletes are most likely to seek protection.

A small consolation for universities facing such litigation is that the student-athletes would need to prove both eligibility and a wrongful act by their school, said Ann Longmore, executive vice president and EPLI practice leader at Willis North America Inc. in New York.

“Courts are not going to determine an individual's status under a certain law absent a complaint, which puts the burden of proof on the plaintiff,” she said.