October 1, 2021Client Alert

NLRB General Counsel Says College Athletes are Employees

On September 29, 2021, the General Counsel for the National Labor Relations Board (“NLRB”) issued a guidance memorandum which restates that certain college athletes meet the definition of employees under federal labor law. This guidance memo, which reinstates GC 17-01 (a prior memorandum issued by another NLRB General Counsel in 2017), greatly expands the ability for student athletes to collectively advocate for improved working conditions and create unions just like other employees. 

In her memo, General Counsel, Jennifer Abruzzo (“Abruzzo”), noted that she chose not to use the term “student athletes” because she believes it “deprives such individuals of workplace protections.” Instead, she refers to such individuals as Players at Academic Institutions. Interestingly, the memo falls short of defining a “Player” and an “Academic Institution.”

To analyze whether Players at Academic Institutions fall within the definition of an “employee” in Section 2(3) of the NLRA (the “Act”), Abruzzo noted that the definition is broad and includes “any employee,” subject to only a few, enumerated exceptions. Those exceptions do not include university employees, football players, or students.  According to the NLRB, an employee includes a person who:

  • performs services for another;
  • in exchange for compensation; and
  • is subject to the other’s right of control.

Abruzzo relied in part on the Board’s decision in Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015), which explained that scholarship football players performed a service (play football) for the university and the NCAA, which generated millions of dollars in profit and positively impacted the university’s reputation, and in turn boosted student applications and alumni financial donations. She went on to address another key issue for this administration where she affirmed that she will be pursuing joint-employer liability against the school and the NCAA or conference for violations of those Players’ Section 7 & 8 rights under the NLRA.

To further support her conclusion that Players at Academic Institutions should be classified as employees under the Act, Abruzzo’s memo points to significant developments in the law, NCAA regulations, and the societal landscape. 

  • In its recent decision in NCAA v. Alston, the Supreme Court unanimously held that NCAA rules limiting certain education-related compensation that schools may offer athletes—such as rules that limit scholarships for graduate or vocational school, payments for academic tutoring, or paid post-eligibility internships—violate antitrust law.
  • The NCAA recently announced the suspension of name, image, and likeness (“NIL”) rules for Players at Academic Institutions, now allowing them to collect payment and opening the door for them to profit from endorsements, autograph sales, and public appearances, among other ventures.
  • Players at Academic Institutions have been engaging in collective action at unprecedented levels. 

Based upon her analysis, Abruzzo reasoned that football players, and other similarly situated Players at Academic Institutions, should be protected by Section 7 of the Act when they act concertedly to speak out about their terms and conditions of employment, or to self-organize, regardless of whether the Board ultimately certifies a bargaining unit.  Therefore, misclassification of such employees as mere “student-athletes,” leading them to believe they do not have statutory projections, will be deemed a violation of the Act. 

This memo puts colleges and universities, athletic conferences and the NCAA on notice of the possibility that Players at Academic Institutions will file unfair labor practice complaints. These entities, and all employers, should remember that the next shoe to drop may be cases which expand the Board’s interpretation of a joint employer’s liability for violations of the NLRA.

Please consult one of the authors of this alert or your Michael Best attorney for proactive advice related to this guidance. 

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