In a recent guidance memorandum, Jennifer Abruzzo, the General Counsel of the National Labor Relations Board, has announced her intention to consider college athletes as employees under federal labor law. The implications of this memo are far-ranging and include the possibility of union representation of college athletes and unfair labor practice charges against universities for alleged violations of labor law. Essentially, the memo places private universities on notice that the NLRB will be eager to pursue claims against them on behalf of college athletes.
By issuing this memo, Abruzzo contradicts relatively recent NLRB precedent, namely the 2015 decision involving Northwestern University football players. In that case, the NLRB declined to exercise jurisdiction over Northwestern for various reasons, including the nature of the collegiate sports “industry” and lack of Congressional direction regarding the coverage of college athletes. In addition, the NLRB noted in that case that it would be difficult to exercise jurisdiction over private universities where they compete against public universities, over which the NLRB cannot exercise jurisdiction. Overall, the NLRB concluded that exercising jurisdiction over college athletes would not stabilize labor relations, which is the overriding goal of the National Labor Relations Act. While the NLRB in the Northwestern case stated that it might assert jurisdiction in another case involving college athletes, the reasons for the Board’s non-intervention remain relevant and applicable now just as in 2015.
The General Counsel takes the position in the memo that college athletes (referred to as “Players at Academic Institutions” in the memo) should be treated as employees because they receive compensation, in the form of scholarships and other aid, and are subject to various rules and regulations while attending school. In the General Counsel’s view, the fact that college athletes receive an education in addition to their athletic responsibilities is of no consequence.
While the General Counsel cannot change NLRB precedent in a memo, she can signal her intentions on a particular issue, which this memo certainly accomplishes. Under this new memo, NLRB regional offices are required to submit any charges filed with the agency that are related to student athletes to the General Counsel’s office for review. The memo makes it abundantly clear that, once such a case reaches her desk, the General Counsel intends to extend all protections of the NLRA to student athletes. Specifically, the memo advises that the General Counsel will even prosecute claims of employee misclassification against universities by merely labeling athletes as “student athletes” instead of employees.
Private universities should be aware of this new position of the NLRB and consult with experienced labor counsel to address its implications.
Andrew MacDonald is a partner in the firm’s Labor and Employment Department, resident in its Philadelphia office.