In yet another win for college athletes, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo has issued a memo that says they are employees under the National Labor Relations Act (the “Act”), and, as such, are afforded “all statutory protections.” The memo comes on the heels of the landmark 9-0 NCAA v. Alston decision, which recognized the profit-generating machine of college athletics while expanding players’ ability to be compensated for education-related expenses, and the NCAA’s adoption of a new name, image, and likeness policy in the face of widespread state legislation. In footnote 1 of the memo, Abruzzo sets the tone by noting that she has chosen not to use the term “student-athletes” because the term was “created to deprive those individuals of workplace protections.”
The NLRB is an independent federal agency that is vested with the power to enforce the Act, which safeguards employees’ rights to organize and form a union. A memo from the agency, by itself, does not mean that college athletes are now employees, but it does tip the scales even further towards that seemingly inevitable result. The memo takes the position that misclassifying such employees as “student-athletes” and leading them to believe they do not have statutory protections is a violation of Section 8(a)(1) of the Act and has a “chilling effect on Section 7 activity.” Section 8(a)(1) makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Notably, Section 7 guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in . . . other activities.”
This means that, for purposes of future investigations and litigation taking place under the Act, the Abruzzo will take the position that scholarship players at academic institutions are employees. Additionally, Abruzzo threatens to pursue independent violations where an employer misclassifies players as student-athletes. Finally, and perhaps most importantly, the memo may clear a path for college athletes to unionize and engage in collective bargaining, just as professional athletes do. Although she does not have the power to unilaterally adopt that position for the NLRB, she has significant power over the agency’s investigation and litigation process.
The memo applies common-law agency rules to determine whether an employer-employee relationship exists. Under the common law “right of control” test, an employee is a person who “performs services for another and [is] subject to the other’s control or right of control.” The services performed by college athletes include the playing of the game for their respective university and the NCAA, thereby generating significant profit. The (scholarship) players receive compensation in the form of tuition, fees, room, and board. The NCAA and the respective universities also control the players’ terms and conditions of employment, including maximum practice and competition hours, minimum GPA requirements, and other restrictions. All these factors, the memo concludes, clearly satisfy both the broad Section 2(3) definition of employee under the Act and the common-law test.
The NLRB issued a memo in 2017 stating that football players at Northwestern University were employees but declined to intervene in that specific case. The memo was withdrawn later that year by the Trump administration. Today’s memo revives the original position. Abruzzo points to several significant developments in the law in recent months, including the NCAA v. Alston decision and the NCAA’s new NIL policy. She cites Justice Kavanaugh’s concurring opinion which states that colleges and students could resolve compensation question by “engaging in collective bargaining.” Abruzzo also notes that college athletes have already been engaging in collective action at “unprecedented levels”, citing the racial justice activism following the murder of George Floyd and concerns regarding player health and safety during the Covid-19 pandemic. She also mentions the #wewanttoplay and #weareunited movements organized by players expressing their desire to play the 2020 season. This type of collective activity, the memo states, directly concerns terms and conditions of employment, and is protected concerted activity.
Although a memo from the NLRB General Counsel is not binding on colleges, conferences, or the NCAA, it certainly expands the ability of athletes to advocate for themselves and perhaps clears the way for them to unionize. The NCAA is now on notice. Stay tuned in to www.conductdetrimental.com and the Conduct Detrimental podcast for more information as this story continues to unfold.
John Nucci is a 3L at Penn State Law and can be reached via email at firstname.lastname@example.org or on Twitter at @JNucci23.