In order for the NLRB to process the petition and proceed with an election to determine whether a majority of the players actually want to be represented by the union, at least 30 percent of the potential members from an appropriate unit for bargaining currently working for the employer must sign union authorization cards. In the case of the Northwestern football team, a minimum of 26 of the 85 scholarship players must have signed union cards to meet the percent requirement. Before an election can be scheduled by the NLRB, several important questions will likely be raised by Northwestern University that must be addressed. The first is whether college athletes, like the members of the Northwestern football team, are actually employees with a legal right to join a union under the terms of the National Labor Relations Act NLRA.
NCAA earlier this month. Only days later, in another case, Dawson v. NCAA, a California federal district court issued an early case management ruling suggesting that that student-athlete FLSA wage claims may still have a few kicks left. The federal district court dismissed the case at an early stage, based on the pleadings, and in its recent opinion, the Seventh Circuit sustained that dismissal after the former students appealed.
The Seventh Circuit concluded that the determination of employee status was not solely dependent on application of a fact-intensive, multi-factor test see, e.
Department of Labor — the federal agency charged with enforcing the FLSA — has stated in its Field Operations Handbook that student athletes are not employees. Berger was a decisive win for the school, and a big, intriguing win for employers generally.
Historically, in FLSA litigation, employee status determinations require case-specific, fact-intensive analysis. Consequently, employers have little hope of an early exit and instead invariably find themselves in the money-sucking rabbit hole of extensive discovery and praying for a district court judge with the temperament and insight to grant them summary judgment.
Perhaps the Seventh Circuit has created an opening for employers to succeed with an early motion in FLSA cases, though such opportunities may be limited to unique relationships of the sort found in this particular case.
Meanwhile, the Berger plaintiffs have asked the Seventh Circuit for a rehearing, complaining that the early dismissal on the pleadings is not consistent with the precedent that pushes FLSA cases to discovery and trial. There, the defendants had moved to forestall discovery and stay the case in anticipation of filing a motion to dismiss based on the Berger decision.
While that survival may hinge on jurisdictional differences here, between courts in the Seventh and Ninth Circuitsthere also may be another, more substantive angle at play. A concurring opinion in Berger suggested that the economic reality of the relationship between student-athlete and school might be viewed differently under the FLSA if the plaintiffs had been participants in revenue-generating sports like football or basketball as opposed to track and field.
Naturally, this is a distinction that the plaintiff is pushing hard in Dawson, but is it a distinction worth a difference?
And what about high school football and basketball players whose games are now broadcast and presumably sold via cable television; do their revenue-generating extracurricular activities render them wage-eligible employees?
Interesting questions for sure, and notwithstanding Berger, the Dawson court appears willing to plunge the parties into extensive discovery in order to address them. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship.
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In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome.College players may not be “student athletes,” but they are something more remarkable: students and athletes, who have managed to go to college while working rigorous, full-time jobs.
College Athletes: Students or Employees? May 15, Business, Business Law, Employment, Laws 0 Comments To describe college athletics as a big business would be an understatement. Three members of the women’s track team at the University of Pennsylvania sued the National Collegiate Athletic Association (NCAA), alleging that they are employees of the university and seeking at least minimum wage for .
Although the 7th Circuit panel opinion held that the plaintiffs were not employees under the FLSA, much less attention has been paid to the concurring opinion, which questions whether the same result would apply to scholarship athletes from revenue-generating sports, like those who played in the National Championship Game.
Berger v. These 3 Factors Distinguish Employees From Contractors. In both the NFL and the NCAA, franchises are facing questions over whether some athletes are employees, contractors, or unpaid intern.
Jan 30, · The NCAA disagrees with the petition, arguing that student-athletes are not "employees" under federal law. There are many reasons why NCAA athletes should be treated like traditional employees.
Here are 21 of them: 1.