The National Labor Relations Board’s general counsel on Wednesday issued a memorandum that says she views college athletes as employees of their schools under the National Labor Relations Act.
The move sets the stage for a renewal of efforts to organize athletes – most likely football or men’s basketball players – at private schools into unionized collective bargaining units that could seek to set various working conditions, including compensation.
Such an effort occurred in 2014 and ’15 with football players at Northwestern University, but that ended when the National Labor Relations Board (NLRB) unanimously decided in August 2015 not to accept jurisdiction over the matter. At that time, it said that because the board has no jurisdiction over public schools, addressing the Northwestern effort would run counter to the National Labor Relations Act’s charge that the board create stable and predictable labor environments in various industries.
On Wednesday, NLRB general counsel Jennifer Abruzzo said in a statement accompanying her memo: College athletes “perform services for institutions in return for compensation and (are) subject to their control.
"Thus, the broad language of … the Act, the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain (college athletes) are statutory employees, who have the right to act collectively to improve their terms and conditions of employment."
In the memo, she wrote that the environment around college sports had changed considerably since the Northwestern case.
“There have been significant developments in the law, NCAA regulations, and the societal landscape, that demonstrate that traditional notions that (college athletes) are amateurs have changed,” she wrote. “These developments further support the conclusion that (college athletes) are employees under the" labor relations act.
Abruzzo cited the Supreme Court’s unanimous ruling against the NCAA in the Alston antitrust case; the NCAA’s changes in its rules regarding athletes’ ability to make money from their name, image and likeness (NIL); and college athletes’ activism, which she wrote has “sky-rocketed along with the national attention to social justice issues following the murder of George Floyd and concerns regarding health and safety in the face of the Covid-19 pandemic.”
The NCAA did not immediately respond to a request for comment on Abruzzo's memo from USA TODAY Sports.
The memo could add urgency to the NCAA's efforts to get a bill passed by Congress that would be centered around the NIL issue, but also include a provision specifically stating that college athletes are not school employees. A bill proposed earlier this year by Sen. Jerry Moran, R-Kan., includes such a provision.
But Sen. Chris Murphy, D-Conn., and Rep. Lori Trahan, D-Mass., have introduced legislation specifically designed to allow college athletes collective bargaining rights. On Thursday, a subcommittee of which Trahan is a member, is scheduled to hold a hearing on college sports at which NCAA President Mark Emmert has been set to testify.
Meanwhile, twice in the past six weeks, a federal judge has rejected the NCAA's bids for dismissal of a lawsuit that is seeking to have college athletes declared school employees under the Fair Labor Standards Act.
University of Illinois labor law professor Michael LeRoy called Abruzzo’s missive “a blockbuster memo” and said: “She's inviting a petition from players to form a union at a private institution. She's put it out there. She's saying, ‘Bring it.’ ”
LeRoy said that while the NLRB only has jurisdiction over private schools, of which there are 12 among the 65 in the Power Five conferences, “if you had a favorable ruling from the board to proceed with an unfair labor practice charge against any private institution, it would have a strong ripple effect throughout the NCAA.”
LeRoy cited what occurred after California became the first state to pass a law allowing college athletes to make money from their NIL in the face of threats from the NCAA and various college administrators that having such a law would result in California schools being isolated from the rest of the member schools. Instead, lawmakers in other states followed California, eventually leading to the current, open NIL environment.
“I don't like to make predictions,” LeRoy said, “but I will say, given what I have seen, it's only a matter of time before there is another (unionization effort involving) a Division I private school football or basketball program. That will likely result in a vote for union representation and then that school will be between a rock and a hard place because the NCAA rules will say you can't treat these folks as employees.
“And the NLRB will say (to the school) ‘It doesn't matter what the NCAA is saying, because you now have a union that you have to bargain with.’ … And I would predict for you, based on the California NIL experience, that the NCAA would capitulate to this and allow schools to form employment relationships."
Follow colleges reporter Steve Berkowitz on Twitter @ByBerkowitz
