NLRB Issues Provocative Memo on Employee Status of Players at Academic Institutions

Yesterday, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all Field offices providing updated guidance regarding her position that certain Players at Academic Institutions (sometimes referred to as student athletes), are employees under the National Labor Relations Act, and, as such, are afforded all statutory protections.

The memo further advises that, where appropriate, she will allege that misclassifying such employees as mere “student-athletes” and leading them to believe that they are not entitled to the Act’s protection has a chilling effect on Section 7 activity and is an independent violation of Section 8(a)(1) of the Act.

“Players at Academic Institutions perform services for institutions in return for compensation and subject to their control.  Thus, the broad language of Section 2(3) of the Act, the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment,” said General Counsel Abruzzo. “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.”

Recent developments bolster General Counsel Abruzzo’s  position, including: the U.S. Supreme Court’s recent unanimous decision in NCAA v. Alston, that recognized that college sports is a profit-making enterprise, rejected the NCAA’s antitrust defense based in the notion of amateurism in college athletics, and expanded permissible types of education-related compensation that had been limited by the NCAA, such as payments for tutoring or scholarships for graduate or vocational schools; and the Players’ recent collective actions about racial justice issues and demands for fair treatment, as well as for safety protocols to play during the pandemic, which all directly concern their terms and conditions of employment.

This new memo also reinstates a related one, GC 17-01, which had been rescinded in December 2017.