The National Labor Relations Board general counsel now considers all varsity athletes to be employees of their schools.
NLRB general counsel Jennifer Abruzzo released a memo on Wednesday explaining why she believes college players are employees of their schools and have protections under national labor relations law.
Abruzzo’s memo cites recent developments in varsity sports, such as players’ ability to make money through their name and image, the recent NCAA Supreme Court ruling against Alston and the net worth of the total compensation that players receive from their schools in the form of scholarships and stipends.
Justice Kavanaugh, in his concurring opinion in Alston, went further. He strongly suggested that the remaining NCAA compensation rules also violate antitrust laws and asked “whether the NCAA and its member colleges can continue to justify not paying student-athletes a fair share” of the billions of dollars. of income they generate. Additionally, he suggested that a mechanism by which colleges and students could resolve difficult compensation issues is to “to hire[ing] in collective bargaining. “
Shortly after the Supreme Court ruling, the NCAA announced the suspension of the Name, Image and Likeness (“NIL”) rules for players at academic institutions. The NCAA faced mounting pressure on it, as state laws across the country granting NIL rights were expected to come into effect. Players at academic institutions can now collect payment for the use of their name, image, and likeness, opening the door for them to take advantage of sponsorships, autograph sales, and public appearances, among other businesses. In addition, players at academic institutions are allowed to use professional service providers to help them engage in NIL activities. The freedom to engage in large-scale and lucrative business ventures makes players in academic institutions much more similar to professional athletes who are employed by a team to play a sport, while simultaneously pursuing commercial ventures to capitalize on their fame. and increase their income.
You can read the memo in full here.
Previous NLRB decisions
The NLRB said in 2014 that Northwestern football players had the right to unionize and that they were school employees. The 2014 ruling stated that the players were not primarily students due to the time they had to spend playing and training and their athletic duties were not a critical part of their degree requirements.
Northwestern had argued that the players were “temporary employees” and ineligible to unionize. Northwestern players were asking for full cost scholarships and guaranteed scholarships for injuries or other circumstances.
In the years since Northwestern’s case, fully guaranteed tuition allowances and scholarships became the norm in varsity athletics as the player rights movement slowly progressed.
In August 2015, the NLRB announced that it would not uphold the 2014 ruling that Northwestern players were employees because granting the petition “would not promote uniformity and stability in labor relations.” . The NLRB cited the narrow scope of the Northwestern decision, as it was only one of 17 private schools at the highest level in college football.
The NLRB is an independent federal body that has the power to protect the right of employees to organize and can make decisions about unfair labor practices.
What does it mean?
Abruzzo’s position is another step forward for varsity athletes as the varsity sporting landscape continues to evolve. While his position does not immediately change anything for college athletes, it does provide a level of protection for athletes in NCAA member schools who attempt to classify players as “student-athletes” and not as employees.
The NCAA and its schools have long argued that athletes are not employees – you may be familiar with all the NCAA commercials noting how so many college athletes end up not playing sport professionally. The NCAA reiterated this position by issuing a statement.
“With varsity sports integrated into the higher education experience, we strongly believe that varsity athletes are students who compete with other students, not employees who compete with other employees. NCAA member schools and conferences continue to make great strides in modernizing the rules for the benefit of college athletes. . Like other college or university campus students who receive scholarships, those who participate in varsity sports are students. Academics and athletics are part of a total educational experience unique to the United States and vital to the holistic development of all who participate. “
The memo is a significant challenge in this regard. Abruzzo said “it alleges that mistakenly classifying these employees as mere” student-athletes “and leading them to believe that they are not entitled to the protection of the law has a deterrent effect on Section 7 activity and constitutes an independent violation of Section 8 (a) (1) of the Act. “
Simply put, any school that attempts to legally argue that athletes are not employees and instead are student-athletes will face a challenge from the National Labor Relations Board. The NLRB is a powerful entity and is clearly willing to go hand in hand with the NCAA. Will the NCAA and its schools be open to fighting with the NLRB? Or will the memo pave the way for future NCAA reforms without a bunch of legal wrangling? We will find out soon enough.