On Sept. 29, 2021, National Labor Relations Board (NLRB) General Counsel Jennifer A. Abruzzo (the GC) issued GC Memorandum 21-08 – Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act.

Pursuant to the GC’s prosecutorial discretion regarding the National Labor Relations Act (the Act), Abruzzo set forth her position that certain “Players at Academic Institutions” on scholarship – commonly known as “student-athletes” – are covered employees under the Act, with the right to unionize, and to engage in other protected concerted activities regarding their working conditions.

This article provides a brief overview of the GC’s guidance along with practical suggestions for academic institutions in light of the announcement.

A Brief History of Board Precedent

While professional sports such as Major League Baseball and the National Football League have long been unionized, the NLRB had not previously addressed the coverage of scholarship college athletes under the Act.

In Northwestern University,¹ – a case of first impression – the board dismissed the Northwestern University football players’ petition for union representation on jurisdictional grounds, leaving the question of whether college athletes were covered employees for another day.

In response, then-GC Richard F. Griffin Jr., issued GC Memorandum 17-01, concluding that scholarship football players were entitled to coverage under the Act as employees. With the change in administration, Griffin’s successor, Peter B. Robb, rescinded this memorandum, leaving the agency without an official position on the issue for the time being.

With issuance of GC Memorandum 21-08, Abruzzo expects that “the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA” will be on notice of her intent to administer the Act consistent with her opinion, including by means of unfair labor practice investigations and prosecutions where appropriate.

However, it remains to be seen whether the NLRB will agree with Abruzzo’s position, when and if an appropriate case comes before it.

GC’s Rationale: Student Athletes are Covered Employees

Objecting to the term “student-athlete” as a subterfuge to “deprive those individuals of workplace protections,” Abruzzo considers scholarship student athletes akin to “professional athletes” who are “employed by a team to play a sport” as a “business enterprise” that “capitalizes on their fame.” Instead, the GC’s preferred term for such individuals is “Players at Academic Institutions.”

Applying the expansive definition of “employee” under Section 2(3) of the Act as “any employee” unless specifically excluded, Abruzzo notes that football players and students are not specifically excluded. Therefore, for the GC, it is consistent with the language and policies of the Act to extend coverage to Players at Academic Institutions.

Moreover, under the common law concept of an employee, Players at Academic Institutions perform services for their colleges and the NCAA in return for compensation in the form of financial aid, subject to the control of their educational institutions, as well as NCAA and athletic conference policies and rules.

For example, players commonly are subject to minimum grade-point averages, practice schedules and competition hours, and penalties for misconduct, which could result in removal from the team or loss of scholarship. Therefore, reasons the GC, scholarship athletes are subject to employer control.

Additionally, Abruzzo highlights the changing societal and legal landscape of college athletics, rendering the concept of the amateur student athlete effectively obsolete. With the Supreme Court’s invalidation of certain NCAA rules on antitrust grounds,² the NCAA’s subsequent change in policy regarding name, image, and likeness rules for players, and the recent attention to social and racial justice issues on college sports teams, players “have gained more power as they better understand their value.”

Abruzzo’s position recognizes this new reality.

GC will Consider Expanding Coverage to State Schools

Section 2(2) of Act excludes public sector employers: State schools acting as employers have ordinarily been exempt from NLRA coverage. However, Abruzzo notes that state school athletes also are subject to the control of nongovernmental organizations such as the NCAA, as well as individual athletic conferences, under the common law definition of employee.

Therefore, Abruzzo has indicated that she will “consider” extending the scope of the NLRA to scholarship athletes at state schools on the basis of a joint employer liability theory. Moreover, Abruzzo will also “consider” prosecuting an athletic conference or association even if some member schools are state institutions.

However, no additional guidance has been provided as to what factors the GC will consider in making this “joint employer” determination.

Practical Implications for College Athletics

It is important to recall that NLRA rights apply to both union and nonunion employers.

Moreover, the NLRA does not only protect union and union-related workplace activities. Section 7 of the NLRA also protects concerted action directed at wages, hours, and other working conditions.

It is unlawful for an employer to retaliate against an employee for engaging in NLRA-protected activities. It is also unlawful for an employer to engage in a wide range of conduct and statements that can be considered to “chill” employees in the exercise of their NLRA rights – even with innocent intentions.

Impermissible statements or conduct engaged in by a supervisor or agent of the organization can constitute an unfair labor practice itself, and can also be used as evidence of “animus” against protected activity in litigation.

In the context of a college sports team, the coaching staff and administration will likely be considered supervisors. As many coaches and administrators may not be familiar with the NLRA’s requirements, it may be of value to conduct training with these individuals, so they can understand what they should and should not do in the event of workplace protests or union organizing activity on their team.

And in the event of any nascent union organizing or collective action, training of supervisors in order to understand the parameters of the NLRA will be critical to minimize the risk of unfair labor practice charges.

Moreover, with college athletics considered a place of employment, teams are encouraged to consider that team decisions – both on and off the field – and enforcement of team rules may constitute “adverse employment actions.” As HR professionals are aware, documentation of and investigation into employment decisions is a common best practice in order to minimize potential exposure.

Decisions regarding game schedules, locker assignment, and rooms, meals, playing time, and conditions for benching may all be considered “employment decisions,” giving rise to a retaliation claim in the event of protected activity.

And in a union-represented context, such subjects would likely become mandatory subjects of bargaining with the union, as well as NCAA practice and competition hours, scholarship eligibility, academic standards, limits on compensation, minimum grade-point average, restrictions on gifts, itineraries for players'​ daily activities, and penalties for infractions that could lead to loss of scholarship.

What remains to be seen is whether the GC’s position will influence other state and federal agencies regarding coverage under other labor and employment laws, such as unemployment insurance, workers’ compensation, wage and hour, equal employment, and family medical leave laws.

Considerations in Anticipation of Potential Enforcement Actions

While the NLRB has not yet ruled definitively on the status of scholarship student athletes, and NLRB decisions are subject to challenges in the federal courts, the GC and the NLRB still retain considerable control of labor policy from a practical standpoint, given their investigative and prosecutorial discretion.

A school may quickly find itself embroiled in a costly NLRB investigation if a charge is filed. Schools may wish to consider the following action points in light of the GC’s position:

• Review team rules and handbooks to ensure compliance with current or anticipated NLRB standards for workplace rules – many rules may be considered impermissible regarding subjects such as confidentiality, non-disparagement, solicitation and distribution, uniform policies, camera and cell phones, and social media.

• Ensure consistent enforcement of team rules to avoid allegations of disparate treatment and enforcement to minimize unfair labor practice exposure in event of organizing or other protected activity.

• Avoid communicating to scholarship student athletes that they are not “employees” subject to the NLRA. The GC will pursue charges of “misclassification” if a college leads covered athletes to believe they are not covered by the NLRA. Teams may wish to avoid the use of the objectionable term “student-athlete” altogether, as it may be considered evidence of an unfair labor practice without further attribution.

• Religious educational institutions may wish to review and revise their policies and websites in order to emphasize the religious mission of their organizations in order to qualify for a religious exemption from NLRA jurisdiction.

• Teams should consider that nonathletes who receive scholarships or financial aid for performing services to the school may also be considered “employees” under the GC’s reasoning. This may include music clubs, cheerleaders, and any other school-sanctioned extracurricular activity for which the student receives a benefit that could be considered “compensation.”

• Develop an action plan and media relations strategy in the event of organizing activity.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Northwestern University, 362 NLRB 1350 (2015).

² NCAA v. Alston, 141 S. Ct. 2141 (2021).