This transcript has been auto-generated using Adobe Premier Pro.
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Tom Godar
Hello and welcome to the Husch Blackwell Labor Law Insider podcast. I'm Tom Godar your host and I'm glad that you've come along in this podcast. We welcome guests with practical expertise and experience
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Tom Godar
regarding labor law issues.
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Tom Godar
And they share their insights related to this ever changing area. The breadth of developments in laws related to unions and individual workers rights that we are experiencing under the Biden appointed National Labor Relations Board and led by General Counsel Jennifer Abruzzo is unprecedented. These developments demand that employers and those giving counsel to organizations stay tuned into these changes and make necessary adjustments to their practices and policies.
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Tom Godar
When President Biden was elected, he promised to have the most union friendly administration ever, and he is fulfilling that pledge. So buckle up and hang on for this wild and wonderful ride
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Tom Godar
in the world of labor law. We are really excited to welcome you back to the Labor Alliance writer and this is your host, Tom Godar, and we continue our discussion. This is part two regarding the nexus between higher education and labor law and a lot of that that we've talked about has to do with the student athlete. And we also had a bonus in part one dealing with the Supreme Court decision.
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Tom Godar
So we've been having a lot of fun with two of my colleagues from our Blackwell offices. We've had Jason Montgomery join us from our Kansas City office, and he is the recognized expert on a national basis with the NCAA student athletes and gives to counsel regarding those issues. And Tyler Paetkau joins us from our California office in the Bay Area.
00;01;50;19 - 00;02;16;06
Tom Godar
Tyler has been very engaged as well in higher education, but more on the sort of traditional labor side. And so between these two gentlemen, we have a great panel to continue our discussion. And our discussion really focuses on how aggressive unions have been generally, but specifically how aggressively unions have engaged in organizing strikes or other activities on college campuses.
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Tyler Paetkau
I think we're already seeing it across many, many campuses. You know, it's interesting reading both the Northwestern University case and then the more recent guidance from General Counsel Abruzzo. They start with the premise that the athletes perform a service, the service that they provide is playing football or basketball. So that's question one. Is that a service? Is that the work of an employee?
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Tyler Paetkau
And there's no question it generates tens of millions of dollars in profit for the universities. In addition to alumni donations, boost the university's reputation. So there's a lot of benefits. They receive significant compensation, according to the general counsel, up to $76,000 a year for the top athletes, which covers tuition fees, room board and books, and a stipend covering additional expenses such as travel and child care.
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Tyler Paetkau
The recent opinion says the NCAA controls the players terms and conditions of employment. Again, assuming that their employees, including the maximum number of practice days and hours at which days they could practice. And according to the NLRB, this is the control aspect. It's what makes them employees.
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Tom Godar
So the NLRA is related to public I mean, private sector employers, right? They leave the public sector out. And so all of which you said, at least from the G.C. memos, from Jennifer Abruzzo, from the National Labor Relations Act standpoint, relates to private universities. They could be very large, very small, obviously. And much of that relates, it seems to me, as Jason was alluding to, to sort of the moral elite athletes where there's big packages and more and more sophisticated controls and so forth.
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Tom Godar
I suppose that even at a D2 D3 school where you've got some of those same rules or same requirements, some of the same assistance, maybe it doesn't come in the form of an athletic scholarship. Are those schools also potentially going to see students looking to have a greater say in the way in which they're spending their college career?
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Tom Godar
That's a toss up question. Either of you can push the button like in Jeopardy.
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Jason Montgomery
Yeah, I'll take a stab at this, because I do think that General Counsel Abruzzo is very clear that she says some and certain sports. So she really is targeting those sports, you know, men's and women's basketball and football, which are revenue generators, men's basketball being the greatest one for the NCAA as an association and football being the the biggest one for conferences that that money is distributed through conferences.
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Jason Montgomery
The NCAA funds are distributed through the NCAA to its member schools. And then as part of that Division two and Division three, receive a percentage of the Division one men's basketball revenue in order to run their championships in the in the rest of their organization. I don't believe that we're going to see an effort to organize in the same way at Division two and Division three and even in other sports, unless they can be demonstrated to to to be a revenue generator.
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Jason Montgomery
However, there is other complicating factors, as there often are, one of which is Title IX and gender equity. And the concept as to whether employment and payments that are made from directly from an institution and whether those need to be equally made to two women, and whether the act that's Title nine contemplates that, or whether a portion of the what they call the treatment areas in college athletics, which are which are different areas that must be deemed to be equitably provided to men and women, whether one of those touches on this particular area.
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Jason Montgomery
So there's this overriding framework that needs to be addressed first before there can be general organization. And certainly at Division two and three, I think we'd be a long way away from seeing anything similar to what's going on it at USC and UCLA and in the NCAA.
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Tom Godar
But surely the fact that the student athletes at those schools may not be as susceptible to being organized successfully because they may not meet some of the various fact circumstance tests that you're talking about doesn't mean that there's a lot of union activity at these smaller campuses. The unions have aggressively taken to organizing PTAs and and students who are engaged in the academic, not just the athletic pursuit.
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Tom Godar
And having we see some pay or some sort of compensation or compensation like payments for their services. Are we, Tyler, going to continue to see the unions targeting university and college campuses, both large and small, public and private?
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Tyler Paetkau
Yeah, I see no end in sight. I think there's they're going to be more aggressive now with this this new Biden and LRB and you know, with their starting with the USC and the the private schools. But I think you're going to see them expand to the you see schools that have, you know, feeders to the NFL and the NBA are also susceptible to this organizing on campus.
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Tyler Paetkau
I think it's easier to go after the private institutions for now, but I think I just see a slippery slope, not not so much the d one who I view as more traditional student athletes, but but other D1 scholarship athletes being treated as employees with all the rights of employees.
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Tom Godar
Well, we did talk about the National Labor Relations Act only applying to the private sector, but almost every state has some sort of opportunity for the public sector employees to be recognized. In Wisconsin. It's been curtailed somewhat over the past decade, but it's not gone. And certainly other states, it's much more robust, having terrific opportunities to be recognized as bargaining agents for those engaged in employment who are not supervisors and so forth.
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Tom Godar
So I don't think by any stretch that the public sector universities are out from under this or that.
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Tyler Paetkau
No, and I'm California has a robust public employment relations board probe. And I'm surprised, actually, that there haven't been more similar complaints filed with the with the public agency entity, the probe. That's something to to stay tuned on. You know I would also add to to Jason's point about now and how things are evolving, General Counsel Abruzzo went out of her way to cite not only the developments in Ireland, how sports is changing, college sports is changing rapidly, dramatically.
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Tyler Paetkau
She also kind of strange bedfellows here, she cited prominently Justice Kavanaugh's opinion in the Alston case for, oh, very critical of the NCAA. NCAA is antitrust violations. And trying to piggyback on that and her point is that this this whole area is evolving very rapidly. And stay tuned.
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Tom Godar
Well, that's great advice. Frankly, though, when I heard you are going to respond to Jason, think you're going to talk about hockey being a moneymaking sport, why aren't they included in that? But yeah.
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Tyler Paetkau
Well, only only a University of Michigan and Boston College, maybe maybe University of Minnesota would qualify. Now, that's that's another slippery slope argument. You know, a lot of these you know, it's interesting, historically good hockey players went the junior route and now they're going to colleges. And more and more draft picks are right out of college. You know, it's been one or two years.
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Tyler Paetkau
So that is now become a feeder for the NHL. Not as big a moneymaker as NBA and NFL, but that's that's probably coming around around the corner.
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Tom Godar
Well, guys, can we gin up a case on behalf of the universities to sue the NHL or the NBA or something like that and see if they can't get those contributions up in order to pay the students the 10,000 bucks a year that the that they're eligible to receive. I guess I'll wait for somebody else to take the lead on that case.
00;10;44;12 - 00;11;12;01
Tom Godar
You know, as we kind of close down our conversations, what would you advise our clients, our friends in this space to be doing as they anticipate this more aggressive space, both on the traditional areas of those who are working in administration or in education, but maybe not at the professorial level to the others who are just engaged in student athletics.
00;11;12;01 - 00;11;31;06
Tom Godar
And their parents are worried about whether my son's actually going to keep that scholarship and does he really get a chance or should get a chance to provide time for her, his education? What what kind of advice are we giving to universities these days to be prepared and to keep going? I'll start with you, Jason.
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Jason Montgomery
Well, I think first and foremost, we have to monitor the system in the way the Incas managing name, image, likeness in each state. You know, we're in a situation where we have 30 plus state laws that are all to varying degrees, different. So you have to be very specific as to how you're addressing your state law, depending on where you are.
00;11;52;23 - 00;12;31;27
Jason Montgomery
But but from a kind of broader concept, I do think that that institutions need to look at alternative models, especially when you're at the highest elite level, and whether an alternative tentative model would. When I say alternative, I'm talking about an employment model for some of your athletes, whether that's feasible on your campus, whether it can be implemented in a strategic way that is aligned with conference goals, and whether you can get a number of individuals on the same page with respect to that, I don't foresee Congress intervening to to significantly address any of these situations.
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Jason Montgomery
And I don't necessarily believe that the NCAA as an organization itself is going to come up with a viable solution. So that leaves really the individual institutions and the conferences to make some does some hard decisions. But until we see that, I think that the institutions are prepared, some of them, to defend the fact that there is a traditional educational component that is not an employment component when it comes to to student athletes, that coaches are the employees, but they, similar to professors, provide an educational opportunity for athletes.
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Jason Montgomery
And in that context and based upon you know, 100 plus years of tradition that student athletes, just by the nature of what they're doing, should not be deemed employees.
00;13;22;07 - 00;13;33;18
Tom Godar
Fair enough. How about you, Tyler, kind of last words just to this cautionary tale. What would work? What are you thinking about in terms of how the employers and or universities ought to be reacting?
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Tyler Paetkau
So in the old days, this cries out for a legislative fix. But I agree with Jason that that's not likely to happen with this Congress being so polarized. But, you know, the way things are now, it's difficult for universities that are complying with the NCAA requirements to not have this level of control in terms of practice time, GPA, eligibility, you know, for compensation, gifts, etc..
00;14;02;22 - 00;14;26;12
Tyler Paetkau
So given that, you know, the control that the the NCAA exercises for compliance purposes, they're kind of walking into a finding by at least by the board that these are employees due to that sort of hyper control of their daily lives. I think it might come to a an appeal to the D.C. Circuit or the Ninth Circuit and then the U.S. Supreme Court.
00;14;26;12 - 00;14;38;03
Tyler Paetkau
Ultimately, unless there's a change in the board, and that's going to be, as we all have been talking about on these labor law insiders, the board tends to be very political and changes with the administration.
00;14;38;15 - 00;14;59;06
Tom Godar
Well, this has been fun, a little bit different, but there's some big media stories here that are tales for all of our clients about joint employment and how far the sport wants to press. That whole issue about creating opportunities for organizing that might be outside the norm, just as we've seen in several other decisions and have we've been sort of handicapping this race.
00;14;59;20 - 00;15;16;09
Tom Godar
So guys, thank you so much for joining Labor Law Insider has been terrific and let's get back together and keep our eyes on this really emerging area. It's fascinating. Just as a an exercise, but certainly for our clients who are in that space, really helpful, too. Thanks, Melissa.
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Tyler Paetkau
Thanks, Tom.
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Jason Montgomery
Thanks a lot. Thanks.
00;15;18;27 - 00;15;35;16
Tom Godar
All righty. Goodbye now and thanks for joining the Labor Law Insider. If you enjoyed it, just let your friends and colleagues know. Thanks and good bye.