Bass, Berry & Sims attorney Audrey Anderson discussed a memo released by the general counsel at the National Labor Relations Board (NLRB) recommending that athletes at private colleges be categorized as employees under federal labor law and therefore entitled to certain protections. “From her perspective [the NLRB general counsel and author of the memo], certain college athletes are employees for purposes of the National Labor Relations Act (NLRA). Meaning that they have the right to organize, form a union, collectively bargain, strike, things like that. And she also went that step farther to say that if you call these people who play sports at a college, if you call them student-athletes as so many of us have done for so long, you may be misclassifying them under the National Labor Relations Act. And she may in future cases take a position that that misclassification is a separate violation of the National Labor Relations Act.”
In terms of how the NLRB and courts could react to this memo, Audrey said “It is possible that the board will not agree with her on this. It’s also possible that a court will not agree with her or with the board. So her pronouncement is certainly not the end of the matter. She does not get to say what the law is. All she can do is say this is the position that we are going to take in pursuing charges in labor relations disputes.”
“The next step is for college players to try to unionize or to try to take other kinds of collective activity and if they believe that their college or their conference is prohibiting them from taking collective activity they could file a charge with the NLRB saying our rights under the National Labor Relations Act have been violated,” Audrey stated. “Now, what’s also interesting in this memo is that the general counsel also says that she is open to considering charges against a sports conference, including the NCAA. And that’s interesting because public institutions are not governed by the National Labor Relations Act. So any state colleges and universities are governed instead by any state law that might exist around collective bargaining. However, most conferences have state institutions within them.”
The full episode, “College Athletes Could Unionize Under a New NLRB Memo,” was released by the Bloomberg Law Podcast on October 2 and is available online or wherever you get your podcast content.