[co-author: Jessica Brissette]
Union organizing for students remains a developing issue with an uncertain future that is complicated by a new presidential administration and new members of the National Labor Relations Board (NLRB or Board). For decades, the Board has oscillated on the question of whether college and university students are employees under the National Labor Relations Act (NLRA or Act). Currently, students can qualify as employees under the Act, but the employment status of student athletes remains murky. The current administration has already begun to restrict students' employment status, particularly for athletes.
The question of whether students can be employees under the Act has a complicated history. The Board has shifted its position on the issue frequently. The NLRB’s last major decision on students’ status as employees in higher education came in 2016, when the Board found that certain graduate and undergraduate students at Columbia University (e.g., teaching assistants) were university employees. In 2020, a Trump-appointed Board tried, but failed, to reverse that decision via rulemaking. Then, under a union-friendly Biden administration, student organizing exploded.
For student athletes specifically, the NLRB first addressed the issue in 2015 after a Regional Director (RD) concluded that Northwestern University's football players receiving grant-in-aid scholarships were employees. The Board chose not to decide the issue, electing instead not to assert its jurisdiction, and the issue remained relatively dormant until the Supreme Court's unanimous June 2021 decision in NCAA v. Alston. In that case, the Court held that the NCAA and some member schools violated federal antitrust law by agreeing to limit education-related benefits—such as graduate school scholarships—for NCAA athletes. Alston was an antitrust case, not a labor case, but the language from Justice Kavanaugh’s concurring opinion has been cited numerous times to advance the employee argument under the NLRA, Fair Labor Standards Act (FLSA), and Title VII. Specifically, Justice Kavanaugh criticized the NCAA’s “massive money-raising enterprise [built] on the backs of student athletes who are not fairly compensated,” and stated “it is highly questionable whether the NCAA and its member colleges can justify not paying student athletes a fair share of the revenues on the circular theory that the defining characteristic of college sports is that the colleges do not pay student athletes.” Justice Kavanaugh recognized that paying athletes would raise several issues, including those involving Title IX and questions about non-revenue generating sports, but then suggested some solutions, among them collective bargaining.
Shortly after Alston, in September 2021, the Board’s General Counsel, Jennifer Abruzzo, issued GC Memo No. 21-08, taking the position that certain students and athletes who are students can be employees, citing Alston and Justice Kavanaugh’s concurrence. GC Memo No. 21-08 opened the flood gates to an enormous amount of student labor activity, including a 2024 petition for union representation filed by Dartmouth College’s men’s basketball players. In response, the RD concluded that Dartmouth’s basketball players were employees because Dartmouth had the right to control the work performed by the team (e.g., players are subject to the Student-Athlete Handbook; must adhere to strict practice and game schedules; are strictly supervised when they leave the confines of campus; and are required to provide basketball services to Dartmouth only, among other factors), and players performed that work in exchange for compensation (e.g., players are afforded an “early read” on admission decisions; received valuable equipment and apparel; were given tickets to games, lodging, meals and the benefits of Dartmouth’s Peak Performance program, among other factors). The players voted for union representation, but that issue never reached the Board because the union withdrew their petition for recognition after the 2024 presidential election.
Notably, in February 2025, the NLRB’s Acting General Counsel under the Trump Administration, William Cowen, rescinded GC Memo No. 21-08—suggesting that student athlete employee status may be in jeopardy. Trump further issued an EO in July 2025 entitled “Saving College Sports,” that appears to be an effort to foreclose employee status in that it requires that the Secretary of Labor and NLRB “determine and implement appropriate measures with respect to clarifying the status of collegiate athletes” in a way “that will maximize the educational benefits and opportunities provided by higher education institutions through athletics.”
Even if the NLRB forecloses employee status for athletes, a 2024 decision from the 3rd Circuit, Johnson v. NCAA, found that college athletes may be employees under the FLSA if certain conditions are met: (1) they perform services for another party; (2) the services are necessarily and primarily for the other party’s benefit; (3) the athletes are under the other party’s control or right of control; and (4) the athletes perform services in return for express or implied compensation or in-kind benefits. The court concluded that “the touchstone remains whether the cumulative circumstances of the relationship between the athlete and college or NCAA reveal an economic reality that is that of an employee-employer.” The court remanded the case back to the federal district court for a possible trial. A full discussion of Johnson can be found here.
The present dominance of name, image, and likeness (NIL) compensation for student athletes, which didn’t exist five years ago, will also likely benefit student athletes’ claims for employee status. Although NIL compensation typically involves athletes being paid by third parties, a 2025 class action settlement in an antitrust case (House v. NCAA) resulted in a court-approved $2.8 billion settlement requiring that the NCAA and its Power Five conferences pay student athletes because they had restricted NIL compensation.
Even if the courts and the NLRB end up concluding that student athletes are employees, several thorny issues remain, including Title IX, the Family Educational Rights and Privacy Act (FERPA), and immigration laws. Some athletes have already claimed that the House settlement violates Title IX because it does not distribute the settlement proceeds equally between men and women. Also, in 2024, a federal district court in Tennessee enjoined an NLRB proceeding involving graduate students because the NLRB’s regulations conflict with FERPA. A full discussion of that case can be found here.
Finally, a unilateral finding that foreign students are “employees” may potentially raise concerns with respect to U.S. federal immigration law. Foreign nationals attending a U.S. college or university on a full-time basis are typically in F-1 nonimmigrant status. F-1 students can obtain employment authorization through Curricular Practical Training (CPT) while they are attending a U.S. school. Employment authorization pursuant to CPT is tied to a specific employer, location, and timeframe, with strict limits on the amount of weekly permissible employment (e.g., F-1 students on CPT can only work 20 hours or less per week while school is in session). Given these constraints, treating foreign students as statutory “employees” may lead to conflicts between labor law obligations and immigration restrictions, creating a difficult landscape of compliance risks including violations of nonimmigrant status and federal work-authorization limits.
The NLRB has already encountered and acknowledged this tension. In 2023, an NLRB RD ruled that graduate student fellows at the Massachusetts Institute of Technology (MIT) are not employees under the NLRA and, as such, are not eligible to be in the Graduate Student Union and United Electrical, Radio, and Machine Workers of America’s collective bargaining agreement collective bargaining unit. The RD’s findings marked an important win for international student fellows at MIT. As emphasized in the decision, classification as “employees” under the NLRA would put international graduate student fellows at a “grave disadvantage” because of the 20-hour employment cap imposed by federal immigration laws for F-1 students. The RD acknowledged that equating academic research or degree-related activity with employment services risks undermining immigration regulations governing foreign students’ lawful presence and participation in U.S. schools. The MIT decision illustrates the broader conflict that may arise when labor law classifications of “employee” interact with federal immigration laws.
It should be no surprise that federal legislators have proposed legislation on the issue, including the proposed 2025 Student Compensation and Opportunity through Rights and Endorsements (SCORE) Act. The SCORE Act would exclude student athletes from the definition of “employees” under the law. The SCORE Act would also preempt states attempting to establish employment status for student athletes. Importantly, this bill does not seem to impact students who are not athletes, meaning that it would not affect the NLRB’s Columbia University decision with respect to research assistants and other student workers. Other proposed legislation, including the College Athlete Right to Organize Act (reintroduced in 2025), supports employee status and provides student athletes with the ability to unionize under the NLRA if they receive direct compensation, including grant-in-aid, and that compensation requires participation in intercollegiate sports.
The classification of students and student athletes as employees continues to develop, requiring employers and their legal counsel to stay informed about ongoing changes, particularly as these matters may be affected by a new administration that historically disfavored employee status.
[View source.]
