On September 29, 2021, National Labor Relations Board (NLRB) General Counsel (GC) Jennifer A. Abruzzo released a nine-page memorandum taking the unequivocal position that “certain Players at Academic Institutions” are employees under Section 2(3) of the National Labor Relations Act (NLRA).  Refusing to call such players “student athletes,” Abruzzo asserts in the memorandum (GC 21-08) that:

the law fully supports a finding that scholarship football players at Division 1 . . . private colleges and universities, and other similarly situated Players at Academic Institutions, are employees under the NLRA.

The consequences of such employee status are not fully described in the memorandum, but could include the protected right to strike, picket and engage in other concerted activity, as well as to form labor unions. Abruzzo’s memorandum directs the regional offices of the NLRB to apply her analysis of athletes’ employee status in future cases, which could portend significant legal complications for colleges and universities.

Abruzzo’s memorandum on collegiate athletics is the latest of several far-reaching GC memoranda she has issued since taking office.  The GC’s recent directives to the regional offices embrace unrelenting support of expansive interpretations of the NLRA that favor pro-labor initiatives.  In this environment, it is critical that employers in all industries, including higher education, make themselves aware of the NLRB’s current tenor and its implications for their workplaces.

It is significant that Abruzzo’s recent memorandum does not employ the historically utilized, and almost universally accepted, term “student-athletes.” Instead, GC 21-08 claims that using the “student-athlete” term is pejorative and that the “student-athlete” label was created to deprive individuals of workplace protections. Abruzzo’s message is that, under her direction, she “will allege that misclassifying such employees as mere ‘student-athletes,’ and leading them to believe that they do not have statutory protections is a violation of Section 8(a)(1) of the [NLRA].”¹ This position has obvious and dramatic consequences for colleges and universities across the United States. In no uncertain terms, GC Abruzzo has laid down her expectation that the Board’s regional offices employ her legal position in future investigations and actions under the NLRA.

Background

Whether student-athletes should be deemed employees under federal labor law has been an area of contention among policy makers for some time. On January 31, 2017, then-General Counsel Richard F. Griffin, Jr., released a memorandum (GC 17-01) outlining a series of representation case decisions involving student-athletes. The memorandum concluded that football players at Northwestern University—specifically, those receiving scholarships—were employees under the definition set forth in Section 2(3) of the NLRA.  Griffin’s memorandum was issued only two years after the NLRB had refused to exercise jurisdiction over a representation petition in which a group of Northwestern University football players sought to unionize.² In the Northwestern case, scholarship football players (not walk-ons) argued that they were employees under the NLRA definition and met the common-law test of employee status.³  Although the NLRB had refused to allow the student-athletes’ representation petition to go forward, in GC-17-01 Griffin took the position that scholarship football players satisfy the broad Section 2(3) definition of employee and the common-law test for such status. Griffin asserted that this conclusion was not precluded by the NLRB’s Northwestern decision.

GC 17-01, which in large part provides the framework for GC Abruzzo’s recent position on student-athletes, was later rescinded by then-GC Peter Robb. GC Abruzzo’s September 29 memorandum not only expressly reinstates GC 17-01, but also expands its scope – such as in warning that the current GC will actively litigate cases where she believes academia has misclassified “Players at Academic Institutions” as non-employees.

Another significant comment in the latest GC memorandum pertains to Abruzzo’s position on what sorts of concerted activity by college athletes would qualify for protection under the NLRA.  In GC 21-08, Abruzzo states that student-athletes protesting racism at their colleges or withholding services in response to social justice issues, like the George Floyd murder, have NLRA protection:

Activism concerning such racial justice issues, including supporting the Black Lives Matter movement, directly concerns terms and conditions of employment, and is protected concerted activity.

To buttress her recent memorandum and avoid obstacles that may be presented by the Northwestern decision, GC Abruzzo cites such decisions as Boston Medical, 330 NLRB 152 (1999), and Columbia University, 364 NLRB No. 90 (2016) to bolster her promotion of an expansive interpretation of “employee” under the NLRA. Abruzzo argues that, since 2017 “. . . there have been significant developments in the law, NCAA regulations, and the societal landscape, that demonstrate that traditional notions that all [student athletes] are amateurs have changed.” She submits that such changes further support her conclusion that certain college athletes are employees under the NLRA.⁴

Another key development that Abruzzo cites is the Supreme Court’s decision in NCAA v. Alston, 141 S.Ct. 2141 (2021). There, albeit addressing non-labor issues, the Court unanimously held that the NCAA’s prohibition on compensation for student athletes violates federal antitrust laws. Abruzzo states, “the Supreme Court. . . recognized that college sports is a profit-making enterprise,” and cites Justice Brett M. Kavanaugh’s concurrence in which he “questioned ‘whether the NCAA and its member colleges can continue to justify not paying student athletes a fair share’ of the billions of dollars in revenue that they generate.’”⁵ GC Abruzzo references such commentary about the NCAA and its member colleges (as high-earning businesses) as an equity-based justification for her broad view of “employee” status under the NLRA. As for the NCAA, Abruzzo says she believes the NCAA and its athletic conferences exert and possess a significant level of control over the student-athletes as they perform services for the NCAA/member colleges. In light of this, GC Abruzzo says that, in appropriate cases, she is inclined to “consider pursuing a joint employer theory of liability.”  

Implications

Colleges and universities must also be concerned about broader implications of GC Abruzzo’s expansive assessment of “employee” status.  In fact, GC Abruzzo does not appear to comment on whether student-athletes, as she now views them as 2(3) “employees,” should—in her view—also have a corresponding right to organize for representational purposes. Moreover, turning away from the NLRB world, it is also quite possible that the U.S. Department of Labor could follow the NLRB’s lead and determine that college athletes must be considered employees for purposes of minimum wage, overtime and other wage/hour laws. Institutions of higher education should keep abreast of any related developments in litigation, DOL field guidance and re-examined agency standards.

While GC Abruzzo’s recent memorandum serves as a powerful “eye-opener” for impacted colleges and universities, even non-academic entities must absorb the importance of this memorandum and the GC’s broader messaging.  Put simply, companies must be cognizant of the GC’s continued expansive interpretations of the NLRA, her pro-labor agenda and aggressive guidance to the regions. Employers would be well advised to consult with counsel to work through questions that may arise and to plan for dealing with them proactively.