So should the term “student-athlete” be scrubbed from the college sports lexicon?
Ingersoll believes colleges and universities should avoid using it, at least in the short term, if they believe they are at risk of having to defend employment claims in front of the NLRB.
“I always thought of myself as a student-athlete and was proud of that,” Osborne said. “I don’t necessarily know that using that term misidentifies, but you need to classify those people as employees.”
Unanswered Questions in the NLRB Memo
However, as Osborne notes, this raises the first of many serious unanswered questions. The NLRB memo would require at least some college athletes to be classified as employees. However, this is at odds with NCAA rules, which prohibit athletes from being institutional employees.
“So we have a conundrum,” she said.
Another question: Which athletes are covered by the memo? Ingersoll said that is unclear.
“The memo distinguishes ‘Certain Players’ as a capitalized term – but it doesn’t actually define the term,” he said. The NLRB only has jurisdiction over private colleges and universities, not state-supported schools. The Northwestern University case applied only and explicitly to scholarship football players at Northwestern. It provided no opinion on other players in any other sport or at any other university, Ingersoll noted.
So to which students and sports does the memo apply? Only scholarship players or all varsity athletes? Both men’s and women’s athletics? Only so-called “revenue sports” or any officially sanctioned sport? To date, college officials and athletes don’t have any answers to these questions.
“Wait and see how it gets enforced,” Ingersoll said. “My assumption would be that it is intended to apply as broadly as the GC’s office can make it apply.”
Osborne said, “The ‘Certain Players’ term is very unclear. The only sport she mentions is football, but it’s hard to say if it’s just about football. But if the memo only applies to scholarship football players, you are leaving everybody else vulnerable.”
She explained that the NLRA is all about the ability to unionize and engage in activities related to exploring unionization, with the employer being prohibited from interfering.
“What she’s saying is that if these athletes want to unionize, we’re going to support that and (the colleges) can’t interfere. Again, though, that opens up so many more questions than there are answers,” Osborne said. For example, which athletes may organize? Can only private school athletes organize? And what exactly are “revenue sports?” This may vary from school to school. For example, the University of Georgia’s Gymnastics program is a profitable operation, while many schools actually lose money on football.
Another key question is that if athletes can organize, may they then collectively bargain with the NCAA about its rules and requirements. Ingersoll said all of this is unprecedented territory for college sports.
“From a legal standpoint, there’s been no union activities among college sports that I’m aware of,” he said. “As an athlete, it’s made clear to you early on that when you participate on a team, you are part of a dictatorship, not a democracy. There is no forcing the coaching staff or administration to do something they don’t want to do.”
Osborne said, “I absolutely agree that it’s not something athletes think about doing – they’ve got too much personally at stake…. The flip side is that we do see student-athletes, through the free speech aspect, uniting for causes. I see that as a more hospitable way to open up a dialogue as to what could be done to make things better, but I don’t see that in union terms.”
“From a legal standpoint, there’s been no union activities among college sports that I’m aware of. As an athlete, it’s made clear to you early on that when you participate on a team, you are part of a dictatorship, not a democracy."
MIKE INGERSOLL, ATTORNEY AT WOMBLE BOND DICKINSON (US) LLP