Private university football players can’t be ‘muzzled’ in speaking to media

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Ari Davis
Tanner Mangum carries the American flag onto the field against Boise State. A National Labor Relations Board ruling determined that private university football players are now employees. (Ari Davis)

A recent report from the National Labor Relations Board asserts that football players at private universities competing in the NCAA Division I Football Bowl Subdivision are now considered “employees.”

BYU football players — along with players from 16 other private universities — now have the legally-protected right to speak with the media without permission from their universities.

General Counsel Richard F. Griffin Jr. wrote that “scholarship football players in Division I Football Bowl Subdivision private-sector colleges and universities are employees” under the National Labor Relations Act. The schools that fit that billing are Baylor, Boston College, Duke, Miami, Northwestern, Notre Dame, Rice, Southern California, Southern Methodist, Stanford, Syracuse, Texas Christian, Tulane, Tulsa, Vanderbilt and Wake Forest.

According to the Jan. 31 report, blanket restrictions on athletes’ communication with the public, whether through social networking/media sites or through media interviews, would be considered unlawful and are subject to change under the National Labor Relations Act. It is unknown at this time if specific restrictions can be placed on athletes’ communication.

While the opinion letter is not law, it provides insight to the NLRB’s mindset regarding the NCAA’s amateurism.

This opinion letter stems from a March 2014 ruling regarding Northwestern University football players. The College Athletes Players Association had filed a petition to unionize the Wildcat football team. The organization claimed that Northwestern was making millions off the football team, while also dictating nearly every aspect of a player’s personal life.

According to the American Bar Association, players were required to obtain a coach’s permission to: “make living arrangements, apply for outside employment, drive personal vehicles, travel off campus, post items on the internet, speak to the media, use alcohol and drugs, or engage in gambling.”

The regional director hearing the petition determined the threat of losing a scholarship strongly compelled players to give all control of their lives to their university. Therefore, it was determined that Northwestern University football players were employees.

Northwestern University appealed the decision to the full NLRB panel, which refused to assert jurisdiction because its decision “would not promote stability in labor relations.”

In a Sept. 22, 2016 opinion letter the NLRB said the following workplace practices are in violation of the NLRA:

  • Prohibiting interviews with the news media without advance approval of a public-relations officer
  • Directing employees to only say positive things to news media
  • Directing employees to avoid negative comments
  • Telling employees that their speech on social media will be regularly monitored by supervisors
  • Ordering employees to refrain from inappropriate or embarrassing posts on social media that injure the image and reputation of the employer
  • Telling employees that all aspects of their work are confidential and must stay in-house

According to the report, the players are now free to “engage in concerted activities for the purpose of (their) mutual aid and protection.”

Traditionally, private universities have been allowed to restrict certain behaviors of their athletes.

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