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Notre Dame Football: National Labor Board Lawyer Says FBS Players At Private Colleges Are Employees

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We talked to a labor lawyer (and ND grad!) to figure out what this new memo means for the future of Notre Dame Football.

Northwestern v Notre Dame Photo by Jonathan Daniel/Getty Images

College football players at 17 private universities, including Notre Dame, are employees and entitled to advocate for safer practice conditions and sharing in profits generated by their games, according to a memorandum issued Tuesday by the general counsel of the National Labor Relations Board.

This determination sounds as if it would cause a cataclysmic ripple effect among all Notre Dame Fighting Irish athletics. But Fort Wayne-based labor lawyer Tony Stites said the memo - which is not law - was written by “a lame duck head of the National Labor Relations Board who is trying to leave a stamp on his legacy or time in office.”

Tony Stites
BarrettMcNagny LLP

Stites, a partner at BarrettMcNagny, is a 1988 graduate of Notre Dame Law School who specializes in labor and employment relations at his firm. He said Richard F. Griffin Jr., the national board’s top lawyer, was trying to find an end around to a 2015 decision where the Board declined to pursue an attempt by Northwestern Wildcats players to form a union.

“What he’s really saying is the purpose that the student athletes voiced at Northwestern, the things that they wanted to seek by organizing, can still be sought without organizing because the National Labor Relations Act applies to employees whether they are in a union or not when it comes to discussing and exploring their terms and conditions of employment,” said Stites.

The labor expert said a future group of student-athletes who believed they were adversely affected by their working conditions would still face the same obstacle the Wildcat players encountered.

The full NLRB board, a majority of which were appointed by a Democratic president, unanimously agreed two years ago that changing the rules for just these 17 institutions would create an imbalance in labor standards. It would force Northwestern to play by a different set of rules than all other Big 10 teams, which are public institutions that are outside the labor board’s jurisdiction.

“That argument, I believe, ultimately will still carry the day with the current board and - quite frankly - would be even more likely to carry the day when a new board is appointed over time (by a Republican president), but commencing in late 2017,” said Stites.

The board has kept a narrow focus on Football Bowl Subdivision student-athletes, because that’s what was put in front of them in the Northwestern case. But Stites said any NLRB ruling that would be applied to football players would have dramatic effects at schools like Notre Dame.

“If you strip these institutions of the programs that generate the money that allow them to provide all of the students that are in athletics with an opportunity to participate, there’s some real negative downside that could happen,” said Stitles. “It’s difficult to declare a football player an employee, yet the fencing participant not.”

Stites noted that revenue generated by student-athletes in certain sports can be used for institutional growth, and often drives academic enrollment.

“It’s real dangerous to go down in an area that clearly was never intended to be governed by the National Labor Relations Act,” he said.

Besides Notre Dame and Northwestern, the private institutions impacted by NLRB decisions regarding employee rights among football players include the Baylor Bears, Boston College Eagles, Duke Blue Devils, Miami-Florida Hurricanes, Stanford Cardinal, Syracuse Orange, USC Trojans, Vanderbilt Commodores and Wake Forest Demon Deacons.

To learn more about Stites’s background and accolades, visit his firm’s website.