College Athletes To Be Considered “Employees” of Their Universities??

Recently, the General Counsel for the National Labor Relations Board (NLRB) sent a memo to regional offices indicating that student-athletes are considered employees under the National Labor Relations Act.

The memo from NLRB General Counsel Jennifer Abruzzo stated that “My intent in issuing this memo is to help educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences and the NCAA, about the legal position that I will be taking regarding employee status and misclassification in appropriate cases…”

What exactly does that mean, and how might it impact your student-athlete? It’s hard to know at this point.

• Will college athletes unionize and end up being paid as employees?

• If so, will they be prepared to pay the appropriate taxes? Will that mean the end of athletic scholarships? (Which aren’t taxed on the portions that cover educational expenses of tuition, fees, books, etc.) Could it also mean the end of Pell Grants for student-athletes?

• If athletes at a private institution are successful in forming a union, does that mean that all athletes will need to pay union dues?

• Could that also result in a significant reduction in donations to athletic departments from alumni and boosters that have been used to fund many sports teams and facilities?

It is important to note that the General Counsel’s memo included the statement “…it is my position that the scholarship football players at issue in Northwestern University, and similarly situated Players at Academic Institutions, are employees under the Act.” (She was referring to the National Labor Relations Act.) Therefore, she is initially referring to scholarship athletes at a private institution.

As I skimmed through different media sources after hearing about this, here are a few of the opinions that I came across:

• Darren Heitner of Heitner Legal pointed out that the National Labor Relations Act only applies to private employers and that public colleges and universities aren’t directly impacted. However, he shared that they may be indirectly impacted as members of private entities (meaning the conferences and the NCAA).

• Michael McCann wrote for Sportico that while Abruzzo is not a voting board member of the NLRB, she certainly does have influence over future votes by the five-member NLRB Board. He also shared that Abruzzo rejects the term “student-athlete” which has been the standard term the NCAA has used in referring to athletes at NCAA member colleges for many years.

• University of Illinois law professor Michael LeRoy believes that Abruzzo is “…inviting a petition from players to form a union at a private institution.”

As if we haven’t had enough change over the past few months with the revision to the NCAA One-Time Transfer Rule, and the permissibility of Name, Image and Likeness opportunities, it appears there may still be more to come.

We’ll keep you updated when more specific information about this topic becomes available.