On September 29, 2021, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued GC Memorandum 21-08 stating that, going forward, the position of the general counsel's office is that certain collegiate athletes are school employees under the National Labor Relations Act (NLRA). Further, Abruzzo stated that calling these athletes "student athletes" may be an independent and per se violation of the NLRA.
Employee status under the NLRA is important because employees have the statutory right to engage in concerted activity, including collectively bargain with their employer concerning the terms and conditions of employment and striking/demonstrating for their mutual aid and protection.
The issue of employee status in college athletics first reached the NLRB in 2015, when scholarship players on the Northwestern football team attempted to organize into a union. See Northwestern University, 362 NLRB 1350 (2015). The board declined to exercise jurisdiction and did not address the issue of whether the players were statutory employees. The NLRB reasoned that deciding the case on its merits could have wide-ranging and potentially destabilizing impacts on college sports. In 2017, the NLRB Office of General Counsel under the Obama administration issued GC 17-01, adopting as its official position that certain collegiate athletes are employees under the NLRA. GC 17-01 was later rescinded by the Trump board in 2018.
This past summer, there were several related developments. In June, the Supreme Court of the United States issued its unanimous decision in NCAA v. Alston, 594 US __, 141 S. Ct. 2141 (2021), holding that NCAA rules limiting certain education-related compensation for athletes violate antitrust law. Shortly thereafter, the NCAA announced the suspension of name, image and likeness (NIL) rules for players at academic institutions. This temporary suspension enables college athletes to profit through endorsements and other deals paying them for their name, image and likeness.
GC Memo 21-08
In GC 21-08, NLRB General Counsel Abruzzo reinstates GC 17-01 and affirms that certain collegiate athletes qualify as employees under the NLRA. She finds support for this conclusion in the broad language of section 2(3) of the act, the policies underlying the act, board precedent and common law.
Abruzzo argues this conclusion is further bolstered by the Supreme Court decision in Alston, changes in NCAA's NIL rules and shifts in the societal landscape. Abruzzo points out that these changes are taking place at a time when players are participating in "collective action at unprecedented levels." She notes the sharp rise in activism among collegiate athletes who have been speaking out about social justice issues relating to racism and COVID-19 health and safety concerns. Abruzzo signals she will be taking an expansive view of the scope of protected activity under the NLRA, as she characterizes this activism among athletes as "protected concerted activity."
GC 21-08 gives notice that in future investigations and litigation, Abruzzo will be taking the prosecutorial position that college and university athletes are employees entitled to all of the rights guaranteed by the NLRA. In addition, Abruzzo states she will be pursuing independent violations of the act for cases in which players are misclassified as "student athletes" rather than employees, because this could mislead players into believing they are not entitled to statutory protection.
Joint Employer Theory
The NLRA does not apply to public institutions and, arguably, the rights guaranteed by the act do not apply to athletes at public universities. But, in a final footnote with potentially wide-ranging consequences, Abruzzo explains how she may get around this legal impediment:
Because [collegiate athletes] perform services for, and [are] subject to the control of, the NCAA and their athletic conference, in addition to their college or university, in appropriate circumstances I will consider pursuing a joint employer theory of liability.
Using the joint employer theory, Abruzzo may argue that the NLRB has jurisdiction over all the member schools of the NCAA, even if they are state institutions.
What Comes Next?
If sustained by the NLRB and appellate courts, Abruzzo's position could have a significant impact on universities and colleges that are NCAA member schools. It is possible that Abruzzo is a bellwether for other federal agencies, such as the Department of Labor. If these agencies follow her lead, the covered institutions may have to contend with athletes claiming protections under a multiplicity of federal and even state laws and regulations. Immediately, potentially covered institutions should scrub their publications and other communications to erase the use of "student athletes" because, according to Abruzzo, the use of the term would be a separate violation of the law.
Duane Morris will continue to provide updates as major developments occur.
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