It's no gag: Major-college athletes gain legally protected right to speak with media

Federal regulators have served notice on the nation’s largest private universities that football players have legally protected rights comparable to other college employees, including the right to speak freely on social media and give interviews to journalists without needed institutional permission.

A Jan. 31 report from the National Labor Relations Board answers the question left hanging in an inconclusive September 2016 NLRB decision involving the Northwestern University football team: Are college athletes “employees” for purposes of federal labor law?

The answer from the NLRB’s chief legal counsel: Yes, if they work and receive compensation comparable to that of traditional college employees. 

The opinion letter from General Counsel Richard F. Griffin Jr. extends only to the 17 private colleges playing football at the NCAA’s highest level of competition, the Division I Football Bowl Subdivision. They include:

Baylor, Boston College, Brigham Young, Duke, Miami, Northwestern, Notre Dame, Rice, Southern Cal, SMU, Stanford, Syracuse, TCU, Tulane, Tulsa, Vanderbilt and Wake Forest.

For those 17 institutions, blanket restrictions on athletes’ ability to communicate with the public, including through media interviews or on social networking sites, are now presumptively unlawful and subject to challenge under the National Labor Relations Act (NLRA). That’s welcome news for journalists, who should now have greatly improved access to players at USC, Notre Dame and some other traditional football powers.

Griffin’s interpretation is a narrow one, and offers no relief at the vast majority of other athletic programs. State institutions aren’t subject to the NLRA, and Griffin didn’t analyze whether the workload and compensation is comparable in sports beyond football or in colleges below Division 1 (though it’s a fair supposition that his logic would extend to basketball at a school like Georgetown or Duke, where the season is even longer than football with greater travel demands). 

Griffin left that door open to further investigation, writing that “we cannot conclusively determine the employee status of other kinds of student athletes in cases that may arise in the future.”

To understand how we got here, it’s helpful first to understand that the NLRA exists largely to protect the rights of private-sector workers to “organize” to improve working conditions, and that the NLRB has broadly interpreted “organize” to include any type of complaint, including a public one, that appears to be a step toward collectively agitating for better pay or benefits. 

In a Sept. 22, 2016, opinion letter, the NLRB stated that the following workplace practices would violate the NLRA if applied to employees:

  • Prohibiting interviews with the news media without advance approval of a public-relations officer.
  • Direct employees to say only “positive” things to the news media and 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 within the family.”

Now, it is the agency’s position that all of these restrictions can’t lawfully be enforced against football players at the 17 major private institutions. 

As Griffin wrote in last week’s memo: “[S]cholarship football players at Northwestern and other Division I FBS private colleges and universities are employees under the NLRA because they perform services for their colleges and the NCAA, subject to their control, in return for compensation.”

While the new NLRB guidance applies to a relative few of the 128 teams in the FBS, the pressure will now be on the NCAA to come up with consistent rules that extend comparable protections to athletes at public institutions. Since private colleges play most of their games against public colleges, it would be anomalous to have athletes governed by two greatly different sets of standards while playing each other (e.g., one team’s players fully accessible for pregame media interviews and the other team’s players off-limits), particularly in the bowl season where media interest is at its highest and where the NCAA takes over primary responsibility from the regional athletic conferences. 

(It’s already deeply questionable whether state colleges can, constitutionally, gag their athletes without running afoul of the First Amendment, which at a minimum gives all students at public institutions the right to speak freely up to the point where their speech substantially disrupts school activities. Blanket restrictions on media interviews – or on the use of social media platforms – may already be unconstitutional at state institutions, just waiting for a sufficiently motivated player to bring a challenge.) 

Now, it’s up to journalists at those 17 colleges to get hold of the handbooks and manuals that govern football players’ interactions with the public. Each one of those institutions should be asked how it plans to adapt to the NLRB’s interpretation and how it is letting players know that their tongues have been untied.