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NLRB General Counsel Declares That College Athletes Are Employees



On September 29, 2021, General Counsel Jennifer Abruzzo (the “GC”) for the National Labor Relations Board (NLRB) issued General Counsel Memorandum 21-08 (“GC Memo”) announcing that scholarship athletes at private universities playing football in the Division I Football Bowl Subdivision (FBS) are employees under the National Labor Relations Act (NLRA). The GC oversees the investigation and prosecution of unfair labor practice cases, which are pursued nationwide by the NLRB's 26 regional offices.

General Counsel: Division I Football Players and Similarly Situated Players are Employees

The GC Memo states that Division I football players, and other similarly situated “Players at Academic Institutions,” are employees under the NLRA. That means they are protected by Section 7 of the NLRA “when they act concertedly to speak out about their terms and conditions of employment, or to self-organize.” In extending the NLRA's protections to football players and other yet to be determined athletes, the GC also reinstated a memorandum addressing the employment status of football players at Northwestern University issued in 2017 by the GC for the Obama Board, but later rescinded under the Trump Board.

But the new GC Memo goes substantially further than the 2017 memo in two respects. First, the GC expanded the NLRA's coverage to include other “similarly situated,” but unidentified scholarship athletes. Second, the GC attempts to ban use of the term “student-athlete” by replacing it with “certain Players at Academic Institutions.” The GC states:

“This memo briefly summarizes my position, set forth in detail in GC 17-01, that certain Players at Academic Institutions are employees under the Act and are entitled to be protected from retaliation when exercising their Section 7 rights.” GC Memo at 2. 

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“That law fully supports a finding that scholarship football players at Division I FBS private colleges and universities, and other similarly situated Players at Academic Institutions, are employees under the NLRA. Indeed, Players at Academic Institutions perform services for their colleges and the NCAA, in return for compensation, and subject to their control.” GC Memo at 3.

The GC goes on to declare that calling such persons “student-athletes” is an act of misclassification and chills the exercise of concerted activity protected by Section 7 of the NLRA and so is subject to an 8(a)(1) unfair labor practice charge:

“In addition, because those Players at Academic Institutions are employees under the Act, misclassifying them as “student-athletes”, and leading them to believe that they are not entitled to the Act’s protection, has a chilling effect on Section 7 activity. Therefore, in appropriate cases, I will pursue an independent violation of Section 8(a)(1) of the Act where an employer misclassifies Players at Academic Institutions as student-athletes. Accordingly, cases involving the misclassification of Players at Academic Institutions should be submitted to Advice.” GC Memo, at 4.

What does this mean for private universities and colleges?

There are two key takeaways for private universities and colleges. First, Division I FBS football players and certain other “similarly situated” persons formerly known as “student-athletes” are employees and protected by the NLRA. Second, simply calling football players and other “similarly situated” persons “student-athletes” is worthy of an unfair labor practice charge. If there is any immediate action to take, it would be to relabel certain “student-athletes” as “Players” (i.e., Football Players, Basketball Players) or some other term in policies and handbooks, and instruct athletic directors and coaches to not retaliate if scholarship athletes start talking about organizing or engage in other concerted activity.

Only time will tell the scope of this directive, and to what extent it will apply beyond the revenue-generating sport of Division I FBS football. Presumably, it will apply to revenue-generating Division I basketball, but it is unclear whether the directive will apply to lower divisions and non-revenue generating sports.

What does this mean for public institutions?

The GC memo does not apply to public institutions because public sector employers are generally not covered by the NLRA. While state labor boards have not gone this far, we expect them to follow the lead of the NLRB and find some if not all scholarship athletes to be employees. And it's too early to tell whether state boards will limit such rulings to scholarship athletes in the revenue-generating sports. Generally, these boards have followed the NLRB's lead in expanding coverage to other students, receiving some form of compensations, whether they be graduate research and teaching assistants, medical interns, or medical residents. Because most state labor boards are likely to follow the NLRB's lead, public universities and colleges should at a minimum instruct athletic directors and coaches not to retaliate against scholarship athletes for talking about organizing or engaging in other concerted activity.

What does this mean for college sports fans?

Buckle up! An NLRB decision confirming the GC's position that scholarship athletes are employees under the NLRA may be challenged in federal court, and at least one member of US Supreme Court has already expressed support for the concept of treating scholarship athletes as employees. As the GC Memo points out, the Supreme Court just issued its unanimous decision in NCAA v. Alston, 141 S. Ct. 2141 (2021), recognizing that college sports is a profit-making enterprise and rejected the NCAA’s antitrust defense based on the notion of amateurism in college athletics. And, in a concurring opinion, Justice Kavanaugh mentioned that one mechanism by which colleges and students could resolve other questions regarding compensation is by “engag[ing] in collective bargaining.” Alston, 141 S. Ct. at 2168 (2021) (Kavanaugh, J., concurring).

We're only in the first quarter

GC Memo 21-08 raises far more questions than it answers. Ultimately, the contours and breadth of NLRA protections for student athletes will be developed through litigation at the NLRB and perhaps in federal courts. We will continue to monitor this nascent body of law and provide updates and advice as it develops.

In addition, treating scholarship athletes as employees under the NLRA may open the door in the (perhaps, not so distant) future to additional protections under other employment laws, such as unemployment insurance, workers' compensation, wage and hour, leave laws, and the plethora of discrimination and whistleblowing laws.

Now is the time for universities and colleges to educate athletic department staff about how to navigate this new world to minimize risks down the road. And Miller Nash lawyers with substantial experience in labor relations in higher education can help.

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