And the other shoe drops.  On September 29, 2021, Jennifer A. Abruzzo, General Counsel for the National Labor Relations Board (“NLRB”), issued a memorandum (GC 21-08) titled “Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act” (the “Memo”).  In it, Abruzzo states that the NLRB now considers certain college athletes employees.  She expressly refuses to refer to college athletes as “student-athletes” because “the term was created to deprive those individuals of workplace protections.”
Abruzzo reinstates GC 17-01, which was intended to provide guidance to employers, labor unions, and employees on the NLRB’s legal approach to unfair labor practices following the famed Northwestern University, 362 NLRB 1350 (2015) decision that declined to resolve whether college athletes were employees under the National Labor Relations Act (“NLRA”).  GC 17-01 made clear that while the NLRB declined to exercise jurisdiction over scholarship football players at Northwestern University, its decision did not preclude a finding that scholarship football players at private institutions, or other similarly-situated players at other institutions, are employees under the NLRA.  

The Memo also relies heavily on other NLRB decisions, including Boston Medical Center Corp., 330 NLRB 152 (1999) and Columbia University, 364 NLRB No. 90 (August 23, 2016), both of which discussed the NLRB’s expansive view of the definition of “employee” and its applicability to student workers on college campuses.  We previously wrote about the potential impact of these specific decisions on the employment status of college athletes.  See Mike Ingersoll, Student-Athletes As Employees: Northwestern, Columbia and Unionization, North Carolina Bar Association (2017), available by clicking here.  That line of cases continues to evolve.

In short, Abruzzo and the NLRB will, from this day forward, consider certain college athletes “employees” under the NLRA, and will litigate athlete-related issues accordingly.  Abruzzo will treat any “misclassification” of college football players as “student-athletes” as a violation of Sections 7 and 8 of the NLRA, and will also pursue joint-employer liability against the NCAA and the school and/or conference for which the athlete competes.  See Memo at 8, n.34 (“Because Players at Academic Institutions perform services for, and subject to the control of, the NCAA and their athletic conference, in addition to their college or university, in appropriate circumstances I will consider pursuing a joint employer theory of liability.”). 

"In short, Abruzzo and the NLRB will, from this day forward, consider certain college athletes “employees” under the NLRA, and will litigate athlete-related issues accordingly."

The Memo cites the expansive view the NLRB takes with respect to the definition of “employee” under the NLRA, and concludes that the scholarship football players at issue in Northwestern University satisfy the definition of “employee” under both the common law and the NLRA.  The Memo concludes that “those football players, and other similarly situated Players at Academic Institutions, should be protected by Section 7 when they act concertedly to speak out about their terms and conditions of employment, or to self-organize, regardless of whether the Board ultimately certifies a bargaining unit.”  The Memo argues that misclassifying those athletes as “student-athletes” has a chilling effect on athletes speaking out against “their terms and conditions of employment, or to self-organize[.]” Moving forward, the NLRB Office of the General Counsel intends to treat such misclassification as a violation of Section 8(a)(1) of the NLRA, which provides for, amongst other protections, unionization.  

The Memo relies on legislative and legal developments across the college sports landscape, including the Supreme Court’s recent decision in NCAA v. Alston, 141 S. Ct. 2141 (2021), specifically citing Justice Kavanaugh’s concurrence and the expansion of name, image, and likeness rights and protections by the NCAA and various states.  It also references the “unprecedented levels” of “collective action,” such as recent social activism and widespread efforts by college football players to continue their 2020 seasons despite postponements and cancellations proposed by conferences and member universities related to the COVID-19 pandemic.  It is Abruzzo’s position that “Players at Academic Institutions who engage in concerted activities to improve their working conditions have the right to be protected from retaliation.”  

Importantly, Northwestern was limited to only scholarship football players at Northwestern University. The Memo recognizes this, and in reinstating GC 17-01, also reinstates its conclusion that “scholarship football players in Division I FBS private sector colleges and universities are employees under the NLRA, with the rights and protections of that Act.”  See GC 17-01 at p. 16.  However, while the Memo includes “Players” as a capitalized term (in lieu of “student-athletes”), and states that it applies to scholarship football players at Northwestern University under the Northwestern decision, as well as “other similarly situated Players at Academic Institutions,” it does not actually define “Player” or “Academic Institution.”  It is safe to assume that “Academic Institution” includes only private colleges and universities, as the NLRB cannot assert jurisdiction over public ones.  Northwestern, 362 NLRB at 1352.  With this context, the Memo stops short of including all scholarship football players nationally.  That said, it remains to be seen whether Abruzzo later expands her guidance—and the “employee” protections of the NLRA—to further include (i) all scholarship athletes, (ii) both men’s and women’s, (iii) amongst revenue and Olympic sports, (iv) at all private colleges and universities, (v) both NCAA-member and non-member.

Regardless, it is clear that the amateur sports landscape will continue to evolve, and quickly.  Novel legal issues will certainly arise, and navigation of this new frontier could be complex. The groundswell created by Northwestern, and magnified by Alston, shows no signs of slowing.  It is a new day for the college sports industry.