DU won’t consider its athletes employees, despite NLRB decision

Fisher & Phillips partner, Darin Mackender, was quoted in a Denver Business Journal article on consequences of recent NLRB decision.

Heather Draper writes:Screen Shot 2014-04-29 at 3.48.10 PM

The University of Denver has no plans to consider its student athletes “employees,” even if the National Labor Relations Boarddid in a case involving Northwestern University.

“We are not going to be paying stipends … We don’t do that for our graduate students, so we won’t do it for athletes,” said Peg Bradley-Doppes, vice chancellor of athletics at DU. “Here, student athletes are students, first and foremost.”

Peter Sung Ohr, director of the NLRB Region 13 (Chicago), on March 24 issued a ruling granting football players at Evanston, Ill.-based Northwestern the right to unionize.

He ruled the football players were “employees” of the private university and that scholarships and stipends provided to players are compensation, or wages, given in exchange for football duties.

The NLRB decision has other Division I private universities scrambling to voice their concerns about the precedent the decision could set.

“These conversations have been 25 to 28 years in the making,” Bradley-Doppes said. “This decision creates a tipping point where there will be much more discussion about what we are and where we stand on this.”

The ruling could “redefine what intercollegiate athletics looks like,” she said.

So far the ruling affects only Northwestern football players, but it could set a precedent for other Division I private universities like DU, said attorney Patrick Scully, member in the labor and employment law department at Denver-based law firm Sherman & Howard LLC.

DU does not have a football program, but it does field competitive teams in several Division I sports, including skiing, ice hockey, basketball, lacrosse and gymnastics.

Public universities such as the University of Colorado and Colorado State University aren’t affected because collective bargaining by public colleges is governed by state law, not the NLRB, but this ruling could influence those negotiations as well, Scully said.

Questions arise now over the definition of “amateur,” whether scholarships could become taxable income, and how teams that unionize could play under the rules of the National Collegiate Athletic Association.

“The concepts that these people are not primarily students and a scholarship is wages for football duties — it just seems fundamentally wrong,” Scully said. “Everyone thinks of this in terms of big money football programs, but in truth, the reality of the application of this would impact small-money, scholarship-driven athletic programs.”

Darin Mackender, partner at Denver law firm Fisher & Phillips LLP, said if the regional NLRB decision is upheld, “it will be a blockbuster development.”

“Private institutions that offer scholarships to athletes in any sport are talking about the decision,” Mackender said. “Most immediately it impacts Northwestern, but beyond that, other private schools that play Division I football because facts are so similar.”

Northwestern said it will appeal the ruling to the NLRB’s main office in Washington, D.C.

It will then be in the hands of the NLRB for the next several months, and if the union decision is upheld, labor lawyers expect the case would then go to a U.S. appeals court, and possibly even to the U.S. Supreme Court.

“To put it in the context of this case, it’s in the first quarter,” Mackender said. “And until the entire litigation process has run its course, we can’t say this will be the law.”

Read the original story here.