The general counsel for the National Labor Relations Board now believes that all college athletes are employees of their schools.
NLRB general counsel Jennifer Abruzzo issued a memo Wednesday outlining why she believes that college players are employees of their schools and afforded protections under the National Labor Relations Act.
Abruzzo’s memo cites recent developments in the college sports world like the ability for players to make money off their name and image rights, the recent NCAA v. Alston Supreme Court decision and the net worth of the total compensation that players get from their schools in the form of scholarships and stipends.
From the NLRB:
Justice Kavanaugh, in his concurring opinion in Alston, went further. He strongly suggested that the NCAA’s remaining compensation rules also violate antitrust laws and questioned “whether the NCAA and its member colleges can continue to justify not paying student athletes a fair share” of the billions of dollars in revenue that they generate. Moreover, he suggested that one mechanism by which colleges and students could resolve the difficult questions regarding compensation is by “engag[ing] in collective bargaining.”
Shortly after the Supreme Court’s decision, the NCAA announced the suspension of name, image, and likeness (“NIL”) rules for Players at Academic Institutions. The NCAA did so in the face of mounting pressure, as state laws throughout the country granting NIL rights were set to take effect. Players at Academic Institutions now may collect payment for use of their name, image, and likeness, thereby opening the door for them to profit from endorsements, autograph sales, and public appearances, among other ventures. In addition, Players at Academic Institutions are permitted to use professional service providers to assist them in engaging in NIL activities. 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.
Previous NLRB decisions
The NLRB said in 2014 that football players at Northwestern had the right to unionize and that they were employees of the school. The 2014 decision said that players were not primarily students because of the amount of time they had to spend playing and practicing and that their athletic duties were not a core element of their degree requirements.
Northwestern had argued that players were “temporary employees” and ineligible to unionize. Northwestern’s players were asking for full-cost of attendance scholarships and guaranteed scholarships in case of injuries or other circumstances.
In the years since Northwestern’s case, cost-of-attendance stipends and fully guaranteed scholarships have become the norm across college athletics as the player rights’ movement has slowly progressed.
In August of 2015, the NLRB announced that it wouldn’t uphold the 2014 ruling that Northwestern players were employees because granting the petition would “not promote uniformity and stability in labor relations.” The NLRB cited the narrow scope of the Northwestern ruling because it was just one of 17 private schools at the top level of college football.
The NLRB is an independent federal agency that has the power to protect employees' right to unionize and can made decisions regarding unfair labor practices.
What does it mean?
Abruzzo's position is yet another step forward for college athletes as the college sports landscape continues to evolve. While her position does not immediately change anything for college athletes, it offers a level of protection for athletes from NCAA member schools attempting to classify players as "student-athletes" and not employees.
The NCAA and its schools have long contended that athletes are not employees — you may be familiar with all of the NCAA ads noting how so many college athletes end up not playing sports professionally. The NCAA reiterated that stance by releasing a statement.
"With college sports embedded within the higher education experience, we firmly believe that college athletes are students who compete against other students, not employees who compete against other employees. NCAA member schools and conferences continue to make great strides in modernizing rules to benefit college athletes. Like other students on a college or university campus who receive scholarships, those who participate in college sports are students. 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."
The memo is a significant challenge to that. Abruzzo said that "she will allege that misclassifying such employees as mere 'student-athletes' and leading them to believe that they are not entitled to the Act’s protection has a chilling effect on Section 7 activity and is an independent violation of Section 8(a)(1) of the Act."
Simply put, any school that attempts to legally argue that athletes are not employees and are instead student-athlete will face a challenge from the National Labor Relations Board. The NLRB is a powerful entity and is clearly willing to go toe-to-toe with the NCAA. Will the NCAA and its schools be open to fights with the NLRB? Or will the memo pave the way for future NCAA reforms without a bunch of legal wrangling? We'll find out fairly soon.