Audrey Anderson Discusses Implications of NLRB Memo for Higher Education and Student Athletes

April 21, 2022
Uncommon Law Podcast

Bass, Berry & Sims attorney Audrey Anderson was interviewed on the Uncommon Law podcast about the implications of the National Labor Relations Board (NLRB) memo for higher education institutions and student athletes. The conversation was part of a larger discussion with other podcast guests about the name, image and likeness (NIL) rules recently implemented for student athletes.

Complicating NIL matters is whether student athletes should be treated as employees of the university.  A memo issued by the general counsel of the NLRB in September 2021 declared that certain student athletes should be considered employees of their universities (see Audrey’s analysis of that declaration here). There are several criteria that come into play to make that determination. Audrey points to one question that remains unanswered about how the definition is applied, mainly, “To what extent is the factor of bringing in revenue for the university important.”

While the NLRB memo was issued in 2021, it is not law. Audrey clarifies that the memo simply identifies “the position that the NLRB will take in prosecuting cases.”

According to Audrey, another significant note to make about the memo is whether “the NCAA could be found to be an employer of the student athletes.” This would potentially allow for student athletes to unionize as employees of the NCAA which could further complicate the issues around economic rights for student athletes.

The podcast “Beyond NIL: Will College Sports Become a Free Market?” was published by Bloomberg Industry Group’s Uncommon Law podcast released on April 19 and available wherever you get podcast content.