College Athletes are Employees Says NLRB General Counsel

On September 29, 2021, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memo advising that college athletes at private universities should be considered employees under federal law. She noted that the definition of “employee” under the National Labor Relations Act is broadly defined to include “any employee,” subject to few exceptions which do not include university employees, football players or students, and under common law, an employee includes a person who performs services for another and is subject to the other’s control or right of control, and “consideration, i.e., payment, is strongly indicative of employee status.” She pointed to the U.S. Supreme Court decisions earlier this which said the NCAA cannot limit education-related benefits given to athletes, and Justice Kavanaugh concurred that that the NCAA compensation rules are hard to justify and may run afoul of federal antitrust law.

She considered the Northwestern University scholarship football players’ effort to unionize during the Obama administration and found they “clearly satisfy the broad … definition of employee and the common-law test” because:

• The athletes play football (perform a service) for the university and NCAA, generating tens of millions of dollars in profit and boosting applications and donations.
• The players receive significant compensation covering tuition, fees, room, board, and books, plus a stipend.
• The NCAA controls the players’ terms and conditions of employment.
• The university controls the manner and means of the players’ work and daily lives to ensure compliance with NCAA rules.

Refusing to label these players as “student athletes,” she concluded: “In sum, it is my position that the scholarship football players at issue in [the Northwestern University matter] and similarly situated Players at Academic Institutions, are employees under the Act. I fully expect that this memo will notify the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA, that I will be taking that legal position in future investigations and litigation under the Act. In addition, it notifies them that I will also consider pursuing a misclassification violation” for labeling these players as mere student-athletes and “leading them to believe that they do not have statutory protections.”