Treating Private College Athletes Like the Pros

The National Labor Relations Board’s top attorney issued a memo Wednesday asserting that athletes at private colleges qualify as employees under federal labor law, entitling them to the same protections as other private sector employees, including the right to unionize.

In the memo, NLRB general counsel Jennifer Abruzzo wrote that federal laws and NLRB policies “fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”

Essentially, it declares that athletes at private colleges are covered by the National Labor Relations Act, a foundational statute that guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining and take collective action such as strikes.

While it may ultimately benefit athletes, the memo doesn’t fundamentally change the relationship between players and their institutions just yet. Rather, it outlines a plausible legal strategy for the NLRB should any labor conflicts arise.

“It could be a very long time before we ever see any school have to bargain with a union for its players,” said Jeffrey Hirsch, a labor and employment law professor at University of North Carolina at Chapel Hill. “But if we ever hit that point, that’s obviously a huge deal.”

The guidance outlined in the memo does not apply to athletes at public institutions, because the NLRA does not cover public sector workers.

“Unless Congress amends the statute -- which they could do and I’d be happy for them to do it -- I can’t assert jurisdiction over a public institution,” Abruzzo said in an interview.

Still, Abruzzo wrote it could “be appropriate” for the board to assert jurisdiction over -- and even pursue charges against -- an entire league or athletic conference, “even if some of the member schools are state institutions.”

Harry Johnson, a former member of the NLRB and now a partner at Morgan Lewis, said that the memo allows the NLRB to take aim at public institutions through the NCAA.

“The NLRB only has jurisdiction over private schools, but coming after the NCAA or the conferences and forcing them to change their rules will effectively end up opening that up for public universities and colleges as well,” Johnson said. “So they should be somewhat concerned.”

The National Collegiate Athletic Association pushed back against the memo in a statement released Wednesday evening, saying, “college athletes are students who compete against other students, not employees who compete against other employees.”

“Like other students on a college or university campus who receive scholarships, those who participate in college sports are students,” the NCAA statement said. “Both academics and athletics are part of a total educational experience that is unique to the United States and vital to the holistic development of all who participate."

Hirsch said the memo might scare the NCAA into taking action on its own regarding athletes’ employment status. He added that the best and possibly only way to create a bargaining framework for collegiate athletics is through the NCAA, which he sees as parallel to professional leagues.

“All the other professional sports leagues, or the major ones, at least, are all unionized, and they are not dealing with individual teams, for the most part,” Hirsch said. “The union contracts are with the leagues, and so it’s kind of the equivalent of that.”

The NLRB memo comes on the heels of the NCAA’s recent decision to allow college athletes to profit from their name, image and likeness (NIL), a move that, Abruzzo said, “just bolsters the notion that [college athletes] are, like pro athletes, employees of their particular college.”

Adrienne Larmett, a​​ senior manager in Baker Tilly’s risk advisory practice specializing in higher education, said the NLRB’s decision “adds further complexity for institutions as they try to comply with and operationalize NIL rules.”

In the past, the absence of overarching federal regulations on whether to treat college athletes as employees prompted states to enact their own NIL laws. Some state laws expressly prohibit classifying student athletes as employees, but now those states could be forced to revise those laws, she said.

“This new guidance will also likely add pressure to college and university leadership to focus on NIL in a way they may not have been before; where providing legal, financial, human resources support before may have been a ‘nice to have,’ will now become a ‘must have,’” Larmett said. “For many institutions who are already overwhelmed with NIL, and myriad other compliance requirements, this new federal guidance presents new challenges.”

In the memo, Abruzzo also said institutions that misclassify players as “student-athletes” or lead them to believe they are not protected under the NLRA can be charged with labor violations.

“While Players at Academic Institutions are commonly referred to as ‘student-athletes,’ I have chosen not to use that term in this memorandum because the term was created to deprive those individuals of workplace protections,” she wrote.

The memo’s findings are actually not new. In February 2017, former NLRB general counsel Richard Griffin wrote in a memo that “scholarship football players in Division I Football Bowl Subdivision private-sector colleges and universities are employees” under the National Labor Relations Act. But later that year, Trump-appointed general counsel Peter Robb rescinded that memo.

Because the new memo doesn’t just include Division I football, but rather all college athletics, Johnson said it will be interesting to see what sports teams use the term “employee,” since teams have regulations based on revenue, scholarship and “team rules.”

“If you’re in a large revenue-generating sport, like football or basketball, those models are going to be subject to scrutiny and highly likely litigation under this memo,” Johnson said.

Abruzzo said her position is backed by the Supreme Court’s June ruling on NCAA vs. Alston, which found that the NCAA cannot bar compensation for education-related benefits. It’s a big change from the position the NLRB took back in 2014, when it declined to assert jurisdiction over a case at Northwestern University, where the football team tried to unionize -- though even then it acknowledged them as employees.

“The freedom to engage in far-reaching and lucrative business enterprises makes Players at Academic Institutions much more similar to professional athletes who are employed by a team to play a sport, while simultaneously pursuing business ventures to capitalize on their fame and increase their income,” Abruzzo wrote.

Abruzzo said that because college athletics is so popular, she hopes the memo will attract a larger audience committed to preserving workers’ rights for all.

“I am hoping that the broader message will be that this isn’t only about players at academic institutions, this is about workers at large, and what rights they have and what rights we will protect and enforce to the extent that those rights are trampled on by their employers,” Abruzzo said