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<i>Don’t Even Think About Calling Them “Student-Athletes”</i> <i>Don’t Even Think About Calling Them “Student-Athletes”</i>

Don’t Even Think About Calling Them “Student-Athletes”

Federal Labor Agency Tells Colleges & Universities That Athletes Are “Employees”

On September 29, 2021, the National Labor Relations Board (“NLRB”) General Counsel issued an unexpected memo about the status of “certain” athletes at private universities, and also included a warning to public universities, athletic conferences, and the NCAA.
 

Introduction


In a directive to local agency enforcement personnel, the General Counsel memo describes three significant changes to the NLRB’s enforcement approach with respect to the status of certain scholarship athletes at private universities: 1) scholarship athletes can be considered “employees” for purposes of the National Labor Relations Act (“NLRA”); 2) as “employees,” these athletes have the right to organize unions and their complaints about “working conditions” are protected; and 3) any institution that “misclassifies” these athletes as “student-athletes” rather than “employees” will be considered to have violated the NLRA.
 

Employment, Not Education


With respect to the assertion that scholarship athletes are actually employees of their respective schools, the memo highlights the NLRB’s view that athletes are “under the control” of their universities and perform “work”  on their chosen field of play, in exchange for various forms of compensation. Athletes generate significant profits for their institutions by playing sports, for which they receive scholarships, all while being controlled in many of their daily activities. According to the NLRB, this looks more like employment, not education.
 

Section 7 Rights


Although the memo focused on scholarship football players, like those at Northwestern University who attempted to unionize in 2014, the NLRB General Counsel also referred to those athletes who may be “similarly situated” as also being protected by the law. The memo did not specify which athletes might be similarly situated, but all of them, according to the NLRB, could be considered employees and therefore protected by Section 7 of the NLRA. Section 7 allows employees to act concertedly, to speak out about their “terms and conditions of employment,” and to organize unions.
 

Misclassification


Specifically avoiding the use of the phrase “student-athletes,” the NLRB General Counsel also warned colleges and universities that the NLRB considers this “misclassification” of “employees” to be an independent violation of the law. The General Counsel’s reasoning for encouraging investigation of claims of “misclassification” is because calling athletes “student-athletes” may lead them “to believe they do not have statutory protections,” which the NLRB characterized as a tool used by colleges and universities to ultimately “deprive those individuals of workplace protections.”
 

Jurisdiction Over State Schools


Generally, public colleges and universities do not fall under the jurisdiction of the NLRB. However, the memo warned that the NLRB has identified a backdoor way to potentially assert jurisdiction over state colleges and universities. In certain situations, the General Counsel noted that the NLRB would assert jurisdiction over the NCAA and athletic conferences, and may also find “joint employer” status with colleges or universities, “even if some of the member schools are state institutions.”
 

Conclusion


Although the memo does not have the force of law, it does provide a clear invitation, and a not-so-subtle roadmap, for athletes and unions to mount challenges against the current status quo at colleges and universities.

The issuance of the memo is an unmistakable message from the NLRB to private and public institutions of higher education, athletic conferences, and the NCAA, that it plans to be aggressive in its interpretation law, as well as in extending jurisdiction over college sports. While the specifics of NLRB enforcement remain unclear, colleges and universities should evaluate their current practices with respect to characterization and treatment of “student-athletes.”

For more information, contact Paul Sinclair or any member of Ice Miller’s Labor, Employment, and Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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