Are College Football Players Receiving Scholarships “Employees” Under the National Labor Relations Act?

In a case that will probably work its way to the U.S. Supreme Court, an NLRB regional director in Chicago ordered a representational election of college football players receiving scholarships at Northwestern University. Northwestern University and College Athletes Players Association, Case No. 13-RC-121359, March 26, 2014.

In his decision, using common law definitions, the regional director found that such student athletes, receiving scholarships to perform “football-related services” for Northwestern under a contract for hire (scholarship agreement) in return for compensation (the scholarship) were subject to Northwestern’s control and were therefore “employees” under the NLRA.

The case has supreme importance to college sports in academic institutions of all sizes, private universities, however small, that offer free education to its athletes in return for their sports skills.

There are also many unanswered questions that flow from this decision if affirmed. Are such “employees” also subject to the many employment laws and regulations affecting workers, such as overtime wages, OSHA, EEOC requirements?

Northwestern has appealed the decision to the National Labor Relations Board (NLRB). The NLRB’s decision may be appealed to the D.C. Circuit Court of Appeals and then to the Supreme Court. We shall see…

Connecticut Courts May Look To Federal Court Precedent In Employment Law

Sometimes a case comes along which should not surprise. Connecticut courts have always looked to federal court cases in interpreting and enforcing Connecticut anti- discrimination and retaliation statutes.

In Amato v. The Hearst Corporation, 149 Conn. App. 774 (2014), plaintiff appealed the court’s decision striking her age discrimination complaint. On appeal, the plaintiff claimed that the court improperly concluded that it was bound by federal precedent in interpreting the provisions of the Connecticut Fair Employment Practices Act. The Appeals Court disagreed.

In this case, the plaintiff was placed on a performance improvement plan. The Court agreed with the Superior Court judge that such a plan was not an “adverse employment action” in keeping with federal court precedent. To prevail on a claim of age discrimination based on disparate treatment, the plaintiff must establish a prima facie case of discrimination and demonstrate the (1) she is in the protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination. Vollemans v. Wallingford, 103 Conn. App. 188, 220, 928 A.2d 586 (2007), aff’d, 289 Conn. 57, 956 A.2d 579 (2008).

Can A Court Award Attorneys’ Fees To A Prevailing Defendant?

In a recent case in Connecticut District Court, a motion for attorney’s fees was denied to the prevailing defendant. Moch v. Town of Greenwich, 2014 U.S. Dist. LEXIS 58287, decided April 28, 2014, No. 3:11cv1398 (SRU).

This was a Title VII action claiming discrimination because of sex and national origin. The Court granted summary judgment to the Town and the Town moved for attorney’s fees. The Court denied the motion based on the following reasoning.

Under Title VII, a court may award the prevailing party reasonable attorneys’ fees. 42 U.S.C. §2000e-5(k). Although they are regularly awarded to prevailing plaintiffs, “they are not routinely awarded to prevailing defendants.” Taylor v. Harbour Pointe Homeowners Ass’n, 690 F.3d 44, 50 50 (2d Cir. 2012), cert. denied, 133 S.Ct. 1280 (U.S. 2013).

The landmark Supreme Court decision Christiansburg Garment Co., v. EEOC, established that in order for a prevailing defendant to collect attorneys’ fees under Title VII, the defendant must show that the “plaintiff’s action was frivolous, unreasonable or without foundation … or that the plaintiff continued to litigate after it clearly became so.” 434 U.S. 412, 422 (1978).

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