In a memorandum to National Labor Relations Board regional directors and other agency officials on Wednesday, NLRB general counsel Jennifer Abruzzo announced her view that college athletes have statutory rights consistent with employee recognition under the National Labor Relations Act. While not of itself a change in law that allows athletes to be paid wages for playing sports in college, the memo is another step on the road of treating college athletes as actual laborers and not mere amateur students.
The NLRB has jurisdiction over private employees, meaning private colleges and universities. It does not have jurisdiction over public universities, which are governed by state labor laws and related agencies.
To be clear, Abruzzo’s memo does not, on its own, convert college athletes into employees or recognize them as employees of their school, conference or the NCAA. The general counsel does not have a vote, as do the five NLRB board members, on matters that could alter precedent. As a result, college athletic directors and their compliance staff do not necessarily need to alter their existing relations with athletes.
The memo also doesn’t express a viewpoint that hasn’t already been raised by an NLRB general counsel. In January 2017, the general counsel at the time, Richard Griffin, offered the same basic opinion in a memorandum. Though celebrated by advocates for reform, Griffin’s memo didn’t produce meaningful change. His successor as general counsel, Peter Robb, rescinded the memorandum 11 months later.
While it’s important to recognize the limits of Abruzzo’s memo, the document could—when viewed in the context of other changes—pave the way for transformation.
To that point, while Abruzzo might lack a “vote”, she possesses substantial powers. Among other things, she oversees the investigation of charges, issues complaints and can petition for temporary restraining orders. Abruzzo, who was previously an attorney for unions, also can advocate for how the board ought to vote and influence the matters it considers. These are important powers that could cause disruption to colleges, conferences and the NCAA.
College administrators should heed the substance of the memo. For starters, Abruzzo bluntly rejects the “student-athlete” moniker, a label the NCAA and member schools and conferences have routinely employed for decades. “Student-athlete” was originally designed for legal purpose: to help schools avoid claims brought by athletes who argued they were employees and thus eligible for workers compensation. Abruzzo says she will allege violations of the National Labor Relations Act when schools “misclassify such employees as mere ‘student-athletes’.” She added that use of “student-athlete” will not, under watch, be allowed to “deprive individuals of workplace protections.”
It will be interesting to see if schools and the NCAA walk back their use of “student-athlete” now that the NLRB’s general counsel suggest it is an offensive phrase that attempts to conceal illegal activities.
Abruzzo also confined the impact of NLRB’s decision in 2015 to reject an attempt by Northwestern football players to be recognized as employees under the National Labor Relations Act. Abruzzo underscored that the board declined to exercise jurisdiction, and “nothing” in its decision “precludes the finding that scholarship football players at private colleges and universities, or other similarly situated Players at Academic Institutions, are employees under the NLRA.” She added that the NLRA enumerates that certain types of workers are not employees, but “those exceptions do not include university employees, football players, or students.” Moreover, she pointed to Supreme Court precedent wherein the Court endorsed the NLRB adopting an “expansive” view of employees.
Abruzzo goes on to make the case that college athletes are, in fact, employees under sensible interpretations of the NLRA and “common law,” a term of art that refers to rulings by courts (rather than statutes). Her reasoning includes:
* College athletes perform a specific service—playing a sport—for their school and the NCAA, thereby generating revenue for them and boosting their institutions’ reputations and, by extension, enhancing their admissions, fundraising and marketing efforts.
* Some college athletes receive significant compensation in the form of money to cover tuition, fees, room, board and books.
* The NCAA “controls the players’ terms and conditions of employment, including maximum number of practice and competition hours, scholarship eligibility, limits on compensation, minimum grade point average, and restrictions on gifts and benefits players may accept, and ensures compliance with those rules ….”
Abruzzo supplements her views by citing recent legal developments. She underscored the U.S. Supreme Court’s 9-0 ruling in NCAA v. Alston, where the Court held that the NCAA and its members violated Section I of the Sherman Antitrust Act by agreeing to limit how much each can compensate athletes for academic-related costs. Abruzzo’s interpretation of Alston is itself telling. She acknowledged that the Court “did not disturb the NCAA’s rules limiting undergraduate athletic scholarships and other compensation related to athletic performance,” but she emphasized the Court “recognized that amateurism in college sports has changed significantly in recent decades and rejected the notion that NCAA compensation restrictions are ‘forevermore’ lawful.” She also wrote the Court “recognized that college sports is a profit-making enterprise”—language consistent with the notion that the labor (athletes) are crucial to that profit-making and should be viewed as such under labor law.
Abruzzo also celebrated the concurring opinion of Justice Brett Kavanaugh in Alston. While the opinion does not change law and is only “persuasive authority,” Abruzzo wrote that Kavanaugh “suggested that one mechanism by which colleges and students could resolve the difficult questions regarding compensation is by “engag[ing] in collective bargaining.” Only employees can form a union.
Abruzzo went on to note that the NCAA suspending its prohibition of name, image and likeness rules in July—thereby allowing college athletes to sign endorsements and sponsorships without running afoul of NCAA rules—help to support her conclusion that college athletes engage in commercial activities and thus ought to be recognized as employees. She also stressed that college athletes have increasingly banded together (like a union) to raise awareness for their issues and the plight of others. To that point, she noted players using the monikers #weareunited and #wewanttoplay during the pandemic and how they were engaged in the Black Lives Matter movement.
Abruzzo concluded by warning that she will adopt her “legal position in future investigations and litigation.” It remains to be seen if the NLRB board itself will adopt her views.
The possibility of college athletes gaining recognition as employees is a complicated topic that involves a mix of federal and state laws. It’s not clear, for example, whether all or certain kinds of college athletes would gain recognition. It’s also uncertain which college athletes could form and join unions, as some states limit unionization opportunities.
There are other potential consequences, including for international colleges athletes who are enrolled through student visas—which might not comport with employee recognition under immigration law. Lastly, there are other ways in which college athletes might gain employee recognition, including through the Fair Labor Standards Act, which is at issue in the Johnson v. NCAA litigation.
While many details need to be sorted, the times appear to be changing, and college athletes appear closer to becoming paid employees.
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