On
December 30, 2014, Michigan Governor Rick Snyder signed Public Act 414
into law. That law amended the
Michigan Public Employment Relations Act to specifically exclude from
the definition of “public employee” any “student participating in
intercollegiate athletics on behalf of a public university in this
state.” The obvious effect of the amendment is to prohibit
student-athletes from engaging in activities permitted by the statute,
such as forming labor organizations; engaging in concerted activities
for the purpose of collective negotiation or bargaining or other mutual
aid and protection; and negotiating or bargaining collectively with
their public employers through representatives of their own choosing. The law is a direct response to the Regional Director's decision in Northwestern University determining that grant-in-aid scholarship football players at Northwestern
University are “employees” under Section 2(3) of the National Labor
Relations Act and can therefore hold a unionization election. That decision is now under review by the National Labor Relations Board in Washington, D.C.
Michigan is not the first state to prohibit public school
student-athletes from unionizing. In April 2014, Ohio enacted Revised Code § 3345.56, which states,
“Notwithstanding any provision of the Revised Code to the contrary, a
student attending a state university as defined in section 3345.011 of
the Revised Code is not an employee of the state university based upon
the student's participation in an athletic program offered by the state
university.” Thus, student-athletes at Ohio’s public
colleges cannot
unionize under the Ohio Public Employees’ Collective Bargaining Act.
Interestingly, the Ohio statute is broader than its Michigan counterpart
in that it is not applicable solely to the Ohio Public Employees’
Collective Bargaining Act, whereas the Michigan amendment is limited to
the Michigan Public Employment Relations Act.
Whether the statutes in Michigan and Ohio become commonplace across the country remains to be seen. What is certain, however, is that the NLRB's decision in Northwestern University will influence states one way or another. Stay tuned for new developments.
Timothy
D. Cedrone, Esq., practices labor and employment law with the law firm
of Apruzzese, McDermott, Mastro & Murphy. He is also an adjunct
professor at Seton Hall University, where he teaches Sports Law, and
Chair of the Entertainment, Arts, & Sports Law Section of the New
Jersey State Bar Association.