NLRB General Counsel says College Athletes are Employees (Again)

October 8, 2021
Firm Publication

On September 29, the General Counsel of the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued a Memorandum declaring her position that certain college athletes should be considered employees of their universities. In the Memorandum, entitled Statutory Rights of Players at Academic Institutions (Student Athletes) Under the National Labor Relations Act (2021 Memo), General Counsel Abruzzo asserts that certain college athletes are more properly classified as employees under the National Labor Relations Act (NLRA). She further explains that “where appropriate,” she will allege that misclassifying these employees as “student-athletes” and leading them to believe that they do not have the statutory rights under the NLRA is a separate violation of Section 8(a)(1) of the NLRA.

Private higher education institutions are subject to the NLRA and should be mindful of the General Counsel’s position and should take steps to educate athletics personnel about the NLRA and its protections for “concerted” activity and the ramifications of the General Counsel’s position. In addition, institutions should strongly consider using the term “student-athlete” going forward, especially when referring to athletes in what are traditionally considered “revenue” programs, like football and men’s and women’s basketball.

Background on NLRB Rulings Related to Unionization at Universities

In 2014, a Regional Director of the NLRB in Chicago ruled that scholarship football players at Northwestern University were employees under the NLRA and therefore were entitled to vote on whether to form a union and engage in collective bargaining with Northwestern University. Northwestern appealed that decision to the full NLRB, and in August 2015, the NLRB dismissed the football players’ petition for lack of jurisdiction. The NLRB did not decide whether the Northwestern football players were employees under the NLRA. Instead it declined jurisdiction on the basis that a decision would not promote stability in labor relations—particularly because the NLRA does not apply to public entities and public universities play such a prominent role in college athletics.

Nonetheless, in January 2017, the then-General Counsel of the NLRB issued a Memorandum explaining his position that scholarship football players at private institutions are employees under the NLRA. In December 2017, the January 2017 Memorandum was rescinded by a new General Counsel of the NLRB.

On July 21, 2021, Jennifer Abruzzo was confirmed as the first General Counsel of the NLRB during the Biden administration.

2021 Memo by General Counsel Abruzzo

The 2021 Memo issued by General Counsel Abruzzo on September 29 first reinstates the Memorandum issued in January 2017 and adopts its analysis for why scholarship football players at private universities in the Football Bowl Subdivision (FBS) are appropriately considered employees under the NLRA. But the Memo goes farther than the January 2017 Memorandum in several ways.

First, the 2021 Memo is not limited to scholarship football players in the FBS. Still, it states that other “similarly situated Players” (Players being the term that the 2021 Memo uses rather than student-athletes) are also properly considered employees under the NLRA. The 2017 Memo based its analysis on a common law definition of employee. It focused not only on the amount of time spent by the football players at Northwestern and the amount of control that the university had over the football players’ lives but also on the fact that football generated significant revenue for Northwestern University and the NCAA.

Second, General Counsel Abruzzo noted that just the use of the term “student-athlete” could be considered a means of misclassifying these individuals. The 2021 Memo references several articles that General Counsel Abruzzo cites for the proposition that the term “student-athlete” was coined by the NCAA and its lawyers to help stave off the application of workers’ compensation and other laws to college athletes. Thus, where a college or university is using the term student-athlete, the institution could be found to be misleading college athletes as to their rights under the NLRA, which, according to General Counsel Abruzzo, constitutes a separate violation of the NLRA.

Finally, General Counsel Abruzzo notes that because of the level of control over college athletes by the NCAA and athletic conferences, she will consider pursuing a joint theory of liability in appropriate circumstances. She noted that it might be appropriate for the NLRB to assert jurisdiction over a conference, even if some of the member schools in the conference are state institutions.

Implications for Colleges and Universities 

Private institutions, especially those participating in Division I, should be aware that the NLRB views “certain” college athletes on their campuses as employees under the NLRA, with all the rights attendant to employees. General Counsel Abruzzo does not appear to be taking the position that all college athletes are employees, but only those who are “similarly situated” to the football players at Northwestern. The amount of revenue that the sport brings to the institution (and the NCAA) is an important factor in determining which college athletes are employees under the General Counsel’s analysis. Accordingly, at most Division I campuses, it seems that the NLRB would consider athletes in the traditional “revenue” sports of football and men’s and women’s basketball to be employees. At certain campuses, this could readily include baseball, hockey, soccer, or even wrestling. Institutions may choose to treat all their college athletes as employees for the NLRA for ease of training and compliance.

Treating college athletes as employees for purposes of the NLRA means that institutions cannot take action against them for engaging in collective action to improve their “working conditions.” This could include many things for college athletics, such as making demands about practice times, access to trainers, adherence to concussion protocols, and even meal availability and quality. General Counsel Abruzzo notes some of the recent collective activity by college athletes in the 2021 Memo, including action concerning racial justice and to protest the suspension of the football season in some conferences at the start of the 2020 season because of the pandemic. These “concerted” activities are protected under the NLRA. As the 2021 Memo notes, “Players at Academic Institutions who engage in concerted activities to improve their working conditions have the right to be protected from retaliation.”

In addition, colleges and universities, especially those that participate in Division I of the NCAA, should consider their use of the term “student-athlete” going forward. The NCAA appears to continue to use the term, but the 2021 Memo now puts all institutions on notice that the NLRB General Counsel may prosecute the use of that term as a separate violation of the NLRA. While it seems highly unlikely that the NLRB would use resources to prosecute such a violation by itself, it is very likely that an institution that is being investigated for other violations of the rights of their college athletes to take collective action to improve their “working” conditions would face an additional charge of violating the NLRA if it was also using the term “student-athlete.”

College athletics remains a dynamic area for business and compliance decisions at the university. If you have any questions about the above, please contact the authors.