This transcript is auto generated
00;00;02;23 - 00;00;38;02
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 regarding labor law issues, 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.
00;00;38;20 - 00;01;05;02
Tom Godar
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. 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 in the world of labor law.
00;01;06;22 - 00;01;41;03
Tom Godar
This is Tom Godar for the Labor Law Insider and welcome once again sports fans and I've gotten to do it twice. This is this is our continuing podcast regarding the Dartmouth University basketball team decision to unionize, a pretty unusual circumstance. We had a lot of fun in the last podcast, which I hope you listen to talking with Tyler Paetkau, one of my partners from our California part of the world, and as well as Jason Montgomery, who practices out of our Kansas City office.
00;01;41;22 - 00;02;14;11
Tom Godar
And as we finished the last discussion, Tyler had shared with us, as well as Jason, a good bit about why the NLRB thought that maybe a basketball team, not maybe certainly a basketball team can be unionized. And what I wanted to do now is find out a little bit about where that goes. Does every basketball team, every athletic team, do orchestras or or bands get that opportunity to become a union organized unit within a university or college?
00;02;14;27 - 00;02;34;17
Tom Godar
I don't know. It's going to go that far. And to turn to that and to open our discussion, we're going to pick up where we left off. And we're going to hear from Jason Montgomery as he gives us some thoughts about where some of our lines are on this organizing of college athletes and maybe others. Jason, take it away.
00;02;34;22 - 00;02;57;09
Jason Montgomery
Well, it begs the question, is this a basketball specific or maybe even football or basketball specific issue? Because there is a quote that I found it really interesting because, you know, there's this argument by Dartmouth that, hey, what about all our other extracurricular activities? You mentioned band, you know, you know, how are we supposed to differentiate these? And this was an interesting quote.
00;02;57;09 - 00;03;19;10
Jason Montgomery
It was major media outlets do not pay for the right to broadcast and distribute video of the vast majority of those activities, which is kind of the adage, you know, you're not paying for someone to do a chemistry experiment to watch that. But there's some value in that, that chemistry experiment that the institution actually may or may take and move forward with.
00;03;19;16 - 00;03;38;25
Jason Montgomery
So it's an interesting way to look at it, but it does seem to me that if I were another small school or a school that is not Division one in particular, I would look at that rationale and say, this isn't us. You know, you're really stretching it if you're trying to apply this to other small schools.
00;03;39;02 - 00;04;02;18
Tom Godar
So we don't know, Jason, whether or not this decision would apply, for instance, to your alma mater, Baker University, where you played football as a small WIAA college, or whether this is going to be applicable to almost any and every institution or subset of an institution where there's control and some sort of benefit to the athlete as well as to the university.
00;04;02;27 - 00;04;30;27
Tom Godar
We do know that that states might move towards this as well. Right now, the public sector is usually generating their own rules, regulations and laws regarding public sector organizing and so do we see or do we anticipate that there's going to be pressure placed on the public sector, on the state legislatures and the governors and so forth, to look at whether or not athletes ought to be considered eligible for union membership at the state level.
00;04;31;01 - 00;04;56;05
Tyler Paetkau
I'm mostly familiar with the the board being the most aggressive in this area. And I'm curious, this is Jason's world dealing with NCAA regulated institutions. What the word is on the street, is there are there organizing campaigns underway? I'm just not aware of anything other than the USC case where there was that that joint employment theory that brought in the NCAA and PAC 12.
00;04;56;17 - 00;05;21;28
Jason Montgomery
So there was some California legislation that has been paused that would have requires revenue sharing. And probably the best example of that is in the antitrust context, whether it's illegal for schools to cut student athletes out of receipt of the proceeds of television deals, for example, that's being litigated right now in the House versus the NCAA in the northern district of California.
00;05;22;09 - 00;05;54;05
Jason Montgomery
So in the labor context, I haven't seen legislation there has been, like I said, the California and there's there's been an Illinois bill that talks about the structure for worker's compensation for athletes as traditional employees. There's an FLSA case, the third Circuit that's pending, Johnson versus the NCAA. So there's a variety of different entities that are looking at this and plaintiff's counsel that have brought actions on behalf of student athletes to challenge the common notion that college athletes are not employees of their institution.
00;05;54;29 - 00;06;18;15
Tom Godar
And we know that there's strikes are very seldom undertaken in baseball and football and basketball. We also know that that it's the entire league employees that form a single bargaining unit. So we're in a funny place here. Be hard to imagine organizing all of and all the PAC ten athletes or Big Ten athletes or whatever we're going to call these things as we get down to the big five.
00;06;18;15 - 00;06;40;28
Tom Godar
Right? But those are not, you know, in a generation, I think that we'll be looking at how that's going to shake or maybe not in 2024, 25, but we're going to look at that. But in today's world, what kind of cautions, what kind of consideration might we offer to our friends and clients that tune into the Labor Law Insider podcast?
00;06;41;01 - 00;06;49;21
Tom Godar
What sort of lessons to be learned from this and some of the other emerging activities that are taking place on campus here? We have to start with Tyler and then we'll run off to you, Jason.
00;06;49;23 - 00;07;15;21
Tyler Paetkau
So, you know, based on this decision, which of course is being appealed to the full board, there are some concerns that if it's allowed to stand by the board and who knows what will happen in November 2024, we may get a new brand new board in to change the direction. But if it stands, you know, employers, universities, colleges, small schools have to be aware of the protections under the act given to employees.
00;07;15;26 - 00;07;45;14
Tyler Paetkau
If they're student athletes, scholarship now or not, are deemed employees. You have to worry about Section seven Rights and those athlete handbooks will be viewed as employee handbooks. And so if you have provisions in there prohibiting the student athletes from speaking with the media without permission criticizing the coach or the administration, those would be a violation of Section seven and could result in exposure for the college or university, I suppose.
00;07;45;14 - 00;08;05;27
Tyler Paetkau
And I'm curious to get Jason's take on it, if it's not yet the law of the land, so to speak. We don't have a final board decision, you know, where are we? We're going to be penalized if we don't retroactively treat people as employees, students, student athletes, as employees. So maybe it's premature to be thinking about that, but I could see that on the horizon.
00;08;06;12 - 00;08;33;12
Tyler Paetkau
You know, it's hard to avoid reading this decision just the the way that colleges and universities and I was trying to translate this to the big five conferences where there's even more control than at Dartmouth. It's hard to imagine running them in a different way that wouldn't make them employees under this decision. The level of control, for example, the benefits that are it's not a direct financial benefit except for athletic scholarship.
00;08;33;24 - 00;08;58;04
Tyler Paetkau
But it's hard to see how it could be managed without finding of employees. And then it just kind of alters the complete landscape. I worry about unintended consequences, like we can't afford to have a union for our 14, or in this case I think it was 27 sports, maybe we're going to disband the wrestling team. We're going to no longer have a volleyball team or a swim team, men's or women's.
00;08;58;04 - 00;09;23;24
Tyler Paetkau
We have to worry about Title nine or Jason does anyway. So I worry about that. You know, we're we're kind of throwing the baby out with the bathwater. I wasn't fortunate enough like Jason to be a student athlete, but that it would be a huge attraction, especially with the scholarship and the recognition and development of your athletic ability with some assistance by your school and now I worry that that's going to be completely changed.
00;09;23;24 - 00;09;28;24
Tyler Paetkau
The landscape is going to change completely if this decision and decisions like it continue.
00;09;29;06 - 00;09;34;15
Tom Godar
Any thoughts that you have, Jason, on that same area? What should we be looking for? When you look around the corner, what are you starting to see?
00;09;34;26 - 00;09;55;06
Jason Montgomery
I appreciate you bringing up Title nine because I think that's a good point. Channel nine is not going anywhere. And so, you know, fundamentally, the question is going to be what what can be supported within the Title nine framework if you also have to pay additional compensation to athletes and if you pay additional compensation to athlete, you do you have to pay equivalent compensation to women's athletes as well.
00;09;55;14 - 00;10;18;24
Jason Montgomery
Then that's an open ended question, whether Title nine was meant to address that. So that is a concern for people that are fought for equity in college sports. And and the Ivy League in particular has been one that has offered a variety of sports, maybe even nontraditional, all sport that, you know, I like you said, I think, you know, anywhere between 27 and 35 sponsored sports at these Ivy League schools.
00;10;18;24 - 00;10;43;28
Jason Montgomery
So that's a problem in terms of what, you know, colleges are already looking at universities. They're looking at how they are engaging with their student athletes from one thing that's mentioned in here in the opinion is touches on name, image and likeness and the requirement that athletes have to sign over their likeness to the institution in Ivy League to be used for promotional purposes and so forth.
00;10;44;06 - 00;11;19;25
Jason Montgomery
And that's pretty significant. And what I have at least cautioned some schools, especially in the last three years when this idea of nil came out, was that you really do need to give an option for your athletes to opt out of that at a minimum, because they now have a property right in their likeness. Clearly, there are some, you know, the board here and courts and other places that are inclined to make findings and utilize the fact that they are being required to execute and use their likeness on behalf of the institution without any compensation, as that's rationale for them being deemed employees.
00;11;19;25 - 00;12;03;19
Jason Montgomery
That's one aspect. And to Tyler's point, though, about the Section seven, you know, some of those also apply to public institutions by basic First Amendment requirements, which allow, you know, athletes or public institutions to, you know, have to have free speech about their activities at the institution as these issues continue to arise, this concept of the ability for schools to manage their athletes in a certain way needs to be rethought and reconsidered and really evaluated from a couple of different perspectives, not only what's in the best interest of our brand as an institution, which is what had been the driving force as to what's in the best interest for us as an institution to ensure
00;12;03;19 - 00;12;09;15
Jason Montgomery
that we're following what is what is the law and what could be the law in the future?
00;12;09;15 - 00;12;34;07
Tom Godar
Well, folks, we have $1,000,000,000 or I'm sorry, $1,000,000,000,000 industry and the athletes are both the product as well as the process for that. There is no question that there's going to be continued review of this at both the sort of state school level as well as the private school level. And I think it's a little bit sideways when it comes out of the National Labor Relations Board, by the way.
00;12;34;10 - 00;12;55;01
Tom Godar
I think that they grasped hard to find this, but I think that over the next several years it's going to be fascinating to watch what takes place in that nexus between athletes athletic programs and the university. And one place that we're going to see it is in this unionized context. So, guys, it was really fun to talk about this.
00;12;55;01 - 00;13;09;11
Tom Godar
I hope that our audiences enjoyed this just as much as I have because it's really great to hear your insights and your thoughts as we move into March Madness. I think that's what we'll call this podcast, March Madness. Thanks, gentlemen, so much.
00;13;09;22 - 00;13;10;13
Tyler Paetkau
Good title.
00;13;10;24 - 00;13;12;06
Jason Montgomery
Yeah, thanks, Tom. Thank you.
00;13;12;16 - 00;13;15;13
Tom Godar
Yeah. Bye bye now.