In 2015 the National Labor Relations Board (NLRB) declined to exercise jurisdiction over a petition filed by a union seeking to represent Northwestern University’s scholarship football players.  The NLRB was unwilling to make an affirmative decision as to whether the Northwestern University scholarship football players were “employees” within the meaning of the National Labor Relations Act  (NLRA).  Last spring, President Biden appointed a new General Counsel who is turning the world of college athletics upside down.

On September 29, 2021, Jennifer A. Abruzzo, General Counsel for the NLRB, issued a Memorandum in which she made it clear that she views scholarship football players such as those at issue in the Northwestern University case as employees under the National Labor Relations Act.

In her September 29, 2021 memorandum, Ms. Abruzzo explains that certain college athletes can be considered employees because “under common law, an employee includes a person who perform[s] services for another and [is] subject to the other’s control or right of control.” Ms. Abruzzo describes the evidence presented in the Northwestern University case that supports the conclusion that the scholarship football players are employees under the NLRA.  For example:

  1. The athletes play football (perform a service) for the University and the National College Athletic Association (NCAA), thereby generating tens of millions of dollars for their institution.
  2. The football players received significant compensation covering their tuition, fees, room, board and books.
  3. The NCAA controls the players’ terms and conditions of employment, including a maximum number of practice and competition hours, limits on compensation, minimum grade point average and other such rules.
  4. Northwestern University controls the manner and means of the players’ work on the field and various dimensions of the players’ daily lives to ensure compliance with NCAA rules.

General Counsel Abruzzo further explains how “significant developments in the law, NCAA regulations and the societal landscape” demonstrate that traditional notions that college athletes are amateurs have changed.  She cites the unanimous finding by the U.S. Supreme Court in NCAA vs. Alston that NCAA rules limiting certain education-related compensation that schools can offer athletes violate anti-trust law.  Shortly after that decision, the NCAA revised its rules and announced that the name, image and likeness rules for players at academic institutions are suspended.  Thus, players at academic institutions can now collect payment for use of their name, image, and likeness, which will open the door for them to profit from endorsements, public appearances and other uses of their name, image, and likeness.

General Counsel Abruzzo likened the freedom to engage in business enterprises as making players at academic institutions much more similar to professional athletes who are employed by a team to play a sport.  She also described how players at academic institutions have been engaging in “collective action” in a number of areas, such as activism on issues of social justice, speaking out about racism at their colleges, and demanding changes, even going so far as to threaten to withhold their services.  Ms. Abruzzo concluded that activism concerning these types of issues directly concern terms and conditions of employment and therefore is protected concerted activity.

Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right to refrain from such activities.

General Counsel Abruzzo used this Memorandum to announce that the scholarship football players at issue in the Northwestern University case, and similarly situated players at other academic institutions, are employees under the National Labor Relations Act.  Ms. Abruzzo also made it clear to institutions of higher education that she will consider the misclassification of players as “student-athletes” rather than employees as a violation of the NLRA in and of itself.

ESPN estimates the top-tier NCAA athletes can earn up to $1 million per year in sponsorships that use their name, image, and likeness.  Professional athlete labor unions have collectively bargained that players receive a percentage of revenues from their team revenues.  A decision that college athletes can form a union and collectively bargain the terms and conditions of their employment will significantly change the landscape of college athletics.

President Biden has stated that he seeks to be the most pro-union president.  In Ms. Abruzzo’s September 29 Memorandum, she is following through with the President’s objective and making it easier for college athletes to unionize.