On September 29, 2021, the General Counsel for the National Labor Relations Board (“NLRB”), put colleges and universities on notice that she plans to prosecute cases against them for denying student athletes their rights under the National Labor Relations Act (“NLRA”). In a memorandum sent to all NLRB regional directors, the General Counsel clearly set out her position that 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.”
The General Counsel’s memorandum reignited the issue of whether student athletes are “employees” under the NLRA—an issue that had been largely dormant for the past several years. The issue is significant because if student athletes are employees, then they enjoy all the rights afforded to private sector employees under the NLRA, including the right to organize and to engage in protected, concerted activities. In 2015, the NLRB declined to exercise jurisdiction over football players at Northwestern University who were trying to form a union. Although at that time the NLRB effectively denied the players the ability to form a union, it explicitly left open the question of whether such student athletes could be employees under the Act.
In coming to her conclusion that student athletes can be employees under the NLRA, the General Counsel relied on the following factors presented in the Northwestern University case:
The General Counsel also noted the following recent developments that, in her opinion, underscore the appropriateness and the need for expanding NLRA protections to student athletes:
Finally, the General Counsel expressed a radical position that the mere labeling of players as “student athletes” is likely a violation of the NLRA because the label is “leading them to believe that they are not entitled to the Act’s protection, [and] has a chilling effect on Section 7 [protected, concerted] activity.” The General Counsel stated that, in “appropriate cases,” it would pursue this independent violation of the NLRA, in addition to whatever rights an institution violated under the NLRA with regard to its student athletes.
Based on this memorandum, private institutions at all levels should be paying close attention to the activities of all student athletes—not just football players—and how they respond to them. As student athletes become more vocal in raising their concerns, they will likely pursue multiple avenues for redress. The General Counsel has paved the way for student athletes to air their grievances before the NLRB, creating additional risk for institutions who completely ignore how the NLRA may affect their relationships with student athletes.