Timeout! NLRB General Counsel Says Student-Athletes Are Employees Who Can Unionize

On September 29, 2021, the General Counsel of the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued a Guidance Memorandum memorializing her position that student-athletes at private universities should be considered “employees” under the National Labor Relations Act (NLRA).

The NLRB has never  directly answered the question of whether student-athletes are employees under the NLRA.  It nearly did so in 2015, when members of the Northwestern University football team attempted to unionize. Instead, the Board declined to exercise jurisdiction on grounds that the novelty of the players’ petition and its impacts on college sports would not have promoted “stability in labor relations.”

Since the Northwestern decision, as GC Abruzzo explained in her Memorandum, the concept of student-athletes as employees has gained broader acceptance in the law.  First came the landmark U.S. Supreme Court decision in NCAA v. Alston, 141 S. Ct. 2141 (2021), which held that the National Collegiate Athletic Association (NCAA) violated federal antitrust laws by prohibiting its member schools from providing student-athletes with certain education-related benefits. In his concurring opinion, Justice Kavanaugh went a step further and questioned whether the NCAA and universities can continue to justify not paying student-athletes for the revenues they generate. He also suggested that one mechanism for resolving compensation disputes between players and universities is by “engaging in collective bargaining.”

Then shortly after Alston, the NCAA suspended its rules prohibiting amateur athletes from profiting off of their name, image, and likeness (“NIL”)—a decision the NCAA made as several state laws throughout the country were set to grant NIL rights to players. As a result, student-athletes may now capitalize on their status to earn significant compensation in myriad ways, from endorsement deals to social media revenues to private tennis lessons.

GC Abruzzo’s memorandum builds on these shifting views and states her position that student-athletes should receive the protections afforded to employees under the NLRA. This includes the right to form and join unions and require their schools to bargain collectively over the terms and conditions of their employment. Granting athletes NLRA protections would also subject schools who interfere with these rights to liability for unfair labor practices, and it could force them to defend disciplinary decisions under contractual grievance procedures.

Importantly, GC Abruzzo’s memorandum is not binding authority; it does not reflect a change in the NLRA. In order for student-athletes to achieve the protections she seeks, GC Abruzzo’s position will need to be considered and adopted by the Board itself. This is typically done through administrative litigation, which requires plaintiff/student-athletes to assert their employee status before the Board in the right type of case. That process may take many months or even a couple of years, but it is likely coming soon. When we reach that point, it will be interesting to see if and how the NLRB draws the lines.

For example, would the protections be limited to major revenue-generating sports at a handful of Division I schools, or would they apply to all sports at all private universities?  Would they apply to student-athletes or also to student interns, managers, and athletic trainers?  Would they be limited to sports or include non-athletic extra-curricular activities? And would bargaining subjects be limited to major decisions like revenue sharing and scholarship allocation, or would they include starting line-up decisions and playing time allocations? These are just a few of the complex issues the Board would need to resolve in order to answer the ultimate question: that is, can employee protections feasibly be granted to student-participants in extracurricular activities in a way that promotes stable labor relations?

It will also be  interesting to see whether GC Abruzzo’s memorandum and these other pro-athlete/employee decisions gain traction in other contexts. Although athletes at private universities may soon be considered employees under the NLRA, the NLRB only has jurisdiction over private universities. Will state agencies follows suit and grant similar protections to students at public universities like Ohio State? And will student-athletes be granted minimum-wage rights under the FLSA, or leave rights under the FMLA?  Such claims have been uniformly rejected by courts so far (including in the recent decision of Dawson v. National Collegiate Athletic Association, 932 F.3d 905 (9th Cir. 2019), wherein the court held that a USC football player was not an employee for wage and hour purposes).  But if these recent decisions signal anything, it’s that the student-athlete employment game is far from over; it may just be beginning.