On September 29, 2021, the National Labor Relations Board (“NLRB”) General Counsel issued a guidance note reaffirming that certain college athletes meet the definition of employees under federal labor law. This guidance note, which reinstates GC 17-01 (a previous note released by another NLRB General Counsel in 2017), significantly expands the ability of student-athletes to collectively advocate for better working conditions and create unions like other employees.
In her note, General Counsel Jennifer Abruzzo (“Abruzzo”) noted that she chose not to use the term “student athletes” because she believed it “deprived these people of protections in the workplace. “. Instead, she refers to people such as players in academic institutions. Interestingly, the note does not define a “player” and an “academic institution”.
To analyze whether players in academic institutions fall within the definition of an “employee” in section 2 (3) of the NLRA (the “Act”), Abruzzo noted that the definition is broad and includes “any employee ”, Subject only to a few exceptions listed. These exceptions do not include university employees, football players or students. According to the NLRB, an employee includes a person who:
- performs services for another;
- in exchange for compensation; and
- is subject to the control rights of the other.
Abruzzo relied in part on the Council’s decision in Northwestern University, 362 NLRB # 167 (Aug 17, 2015), which explained that scholarship footballers render a service (play football) to college and the NCAA, generating millions of dollars in profit and having a positive impact on reputation of the university, and in turn stimulated student applications and financial donations from alumni. She then addressed another key issue for this administration where she claimed she would pursue joint employer liability against the school and the NCAA or the conference for violating the rights of Section 7 and 8 of these players in under the NLRA.
To further support its conclusion that college players should be classified as employees under the law, the Abruzzo memo highlights important developments in the law, NCAA regulations and the societal landscape.
- In its recent decision in NCAA v. Alston, the Supreme Court unanimously ruled that NCAA rules limiting certain education-related compensations that schools can offer athletes, such as rules that limit scholarships for graduate or professional education, payments for academic tutoring or paid post-eligibility internships violate antitrust law.
- The NCAA recently announced the suspension of the Name, Image, and Likeness (“NIL”) rules for players at academic institutions, now allowing them to collect payments and opening the door for them to take advantage of approvals. , autograph sales and public appearances, among other businesses.
- Actors from academic institutions have engaged in collective action at unprecedented levels.
On the basis of its analysis, Abruzzo considered that football players and other players in a similar situation in academic institutions should be protected by Article 7 of the Law when acting in a concerted manner for themselves. express on their terms of employment or to self-organize, regardless of whether the Board ultimately certifies a bargaining unit. Therefore, the misclassification of these employees as mere “student-athletes”, leading them to believe that they do not have statutory projections, will be considered a violation of the law.
This memo informs colleges and universities, athletic conferences and the NCAA of the possibility that players at academic institutions file unfair labor practice complaints. These entities, and all employers, should remember that the next shoe to ditch may be cases that expand the Board’s interpretation of a joint employer’s liability for NLRA violations.