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Don’t Call Them Students - The NLRB Invites Amicus Briefs in Northwestern University Football Case

May 16, 2014

By Michael G. McClory

Legendary Ohio State University football coach Woody Hayes described his style of offense as three yards and a cloud of dust. Another Northwestern University opponent seems to be keeping that tradition alive. Earlier this week, the National Labor Relations Board invited “interested amici” to submit briefs addressing issues related to the controversial Region 13 decision that scholarship students playing on the Northwestern University football team are employees within the definition of the National Labor Relations Act.

In its May 12, 2014 Notice and Invitation to File Briefs, the NLRB noted that Northwestern University had filed a Request for Review of the Regional Director’s Decision and Direction of Election, which Request the Board had granted on April 24, 2014 because it raised substantial issues warranting review. At that time, the Board also said that it would eventually establish a schedule for the filing of amicus briefs. The Board’s Notice this week does just that.

The Board’s Notice directs amici to address any of six specific questions or “any other issues raised” in the case. Among other things, the Board asks amici to discuss the test that should be used “to determine whether grant-in-aid scholarship football players are ‘employees’ within the meaning of Section 2(3) of the Act” [Question 1] and what “policy considerations are relevant to the Board’s determination of whether grant-in-aid scholarship football players are ‘employees’ within the meaning of Section 2(3) of the Act” [Question 3].

In its two-page Notice the NLRB conspicuously uses the phrase “grant-in-aid scholarship football players” six times. The Board also uses the term “employees” nine times and the term “employment” once. On one level, this is to be expected given that the question in the case is whether these scholarship recipients are employees. However, the full question is whether these scholarship recipients are employees or students and the Board markedly does not use the word “student” anywhere in its Notice. This is not accidental and it seems to consciously ignore the fact that these scholarship recipients are enrolled at Northwestern University and take college classes just like the rest of the student body.

Amici briefs are limited to 30 pages in length and must be filed with the NLRB no later than June 26, 2014. Instructions for filing the briefs are included in the Notice.

Bullard Law has been following this matter from the beginning and will continue to do so. For more information, see the Bullard Alert addressing the Regional Director’s decision; also, see The Bullard Edge posts on the appeal and the granting of review

The Bullard Edge