Insights for the Labor Relations Professional


"Student-Athlete" a Naughty Word, Declares NLRB GC

By Nelson Cary

Earlier this week, NLRB General Counsel Jennifer Abruzzo issued a memorandum (GC 21-08) to all of the NLRB’s regional offices regarding “players at academic institutions” (more commonly – and historically – referred to as “student-athletes”). Specifically, the memorandum addressed the question of whether the players at private colleges and universities are “employees” under the NLRA. If so, then they would be entitled to the NLRA’s protections, including the right to organize and join unions. Moreover, institutions may violate the law by even referring to players as “student-athletes.”

The GC’s rationale for her conclusion relies upon the “common law” principle that an employee includes a person “who performs services for another and is subject to the other’s control or right of control.” The NLRA “fully supports a finding that scholarship football players at Division I FBS private colleges and universities, and other similarly situated Players at Academic Institutions, are employees under the [NLRA].” A relationship defined by (1) players performing services for their colleges and the NCAA, (2) in return for compensation (scholarships), and (3) subject to the control of their colleges and the NCAA, is one of employment, at least according to the GC.

There are many implications of the memorandum for labor professionals. The memorandum itself discusses one of the most significant ones. Rather than an historical moniker, the GC instead asserts that “student-athlete” is a “naughty word” in the realm of labor relations. By the GC’s account, the term “student-athlete” is an attempt to “misclassify” such individuals as “students” and not “employees,” and thus create a “chilling effect” on those individuals’ exercise of rights under the NLRA. Thus, regional NLRB offices may now allege violations of the NLRA based solely on the use of these words.

Another significant issue arising from the memorandum is its effect on public colleges and universities. For example, here in Ohio, state law, not the NLRA, governs public employees’ right to engage in union activity. And, that state law contains an express exception to its protections for certain “students.” In press interviews after the release of the memorandum, the GC appears to have acknowledged that players at public colleges and universities are beyond the reach of the NLRB.

But, the memorandum indicates that the GC will look for opportunities to assert so-called “joint employer” liability between private schools and the NCAA. How this may affect the relationship between public schools and the NCAA is yet to be seen. Moreover, it is noteworthy, at least for Ohio public institutions, that earlier this year, Ohio Governor Mike DeWine (R) signed an executive order allowing compensation for Ohio college/university athletes. How this may play out is unknown.

Finally, and perhaps the most significant open question, is whether the NLRB will actually adopt the GC’s theory. The GC, as this blog has explained, is the “prosecutor” in unfair labor practice cases. The NLRB is the administrative body that decides, subject to appeal to the federal courts, what the NLRA requires.

It is not a foregone conclusion that the NLRB will adopt the GC’s position. In fact, in 2015, a unanimous NLRB declined to exercise jurisdiction over Northwestern University’s scholarship football players’ union election petition, thus punting the issue. It found in that case that exercising jurisdiction would not advance the purposes of the NLRA. Appointees of President Obama constituted the majority of the NLRB at that time.

Tags: Employee, student-athlete, union organizing, college, university, Ohio public university, Jennifer Abruzzo

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Insights for the Labor Relations Professional