It’s a Turnover – NLRB GC Now Says Student-Athletes “Players” Are School Employees

The issue of whether “Players” are employees of an academic institution has taken another turn, with the GC of the National Labor Relations Board asserting in a memo that they are. (General Counsel Jennifer Abruzzo characterizes the term “student-athlete” as being intended to deprive those individuals of workplace protections).

Over the years, the Board has gone back and forth on whether Players, as well as student teaching assistants, medical interns, and certain other student workers are, in fact, employees of their academic institution and thereby entitled to the protections of the National Labor Relations Act. In 2015, the union-friendly Obama Board issued a (somewhat surprising) decision declining to exercise jurisdiction over Northwestern football players who sought to unionize, and specifically declining to rule on whether those players were, in fact, employees. In 2017, the then-GC issued a memo asserting that scholarship football players, as well as graduate teaching assistants, do, in fact, meet the test for employee status under the NLRA, given that they perform services for compensation (whether scholarships or, for the assistants, pay), and their services are controlled by the institution. Unsurprisingly, the Trump Board rescinded the 2017 memo, finding that the individuals in question were not employees.

But now, GC Abruzzo has reversed course yet again, reinstating the 2017 memo and expressly asserting employee status for Players. In so doing, GC Abruzzo noted recent developments, including the U.S. Supreme Court’s ruling in NCAA v. Alston, recognizing college sports as a profit-making enterprise and finding that NCAA rules limiting certain compensation that schools may offer athletes violate antitrust law. And as compensation becomes “untethered” from academics, Players are brought more fully within the scope of employee status. She also noted the NCAA’s suspension of name, image and likeness (NIL) rules, thereby enabling Players to profit from NIL activities. Further, she noted the increase in collective action by Players with regard to racial justice issues and health and safety concerns associated with the COVID-19 pandemic, which she characterized as impacting the terms and conditions of employment and subject to protection from retaliation.

The GC also asserted that the misclassification of Players as non-employee “student-athletes” is a separate violation of the NLRA, which she intends to pursue. We can expect the GC to carry out this stated intention, as well as to expand her efforts to other student workers, like the above-referenced graduate teaching assistants and medical interns. This is wholly consistent with the aggressively pro-union stance taken by the Biden administration generally.