College football players and some other athletes in revenue-producing sports at private universities are employees of their schools, the National Labor Relations Board’s top lawyer said in a memo Wednesday that would allow those players to unionize and otherwise negotiate over their working conditions.
NLRB general counsel Jennifer Abruzzo also threatened action against schools, conferences and the NCAA if they continue to use the term “student-athlete,” saying it was created to obscure the employment relationship with college athletes and discourage them from pursuing their rights under the National Labor Relations Act. Abruzzo notes that the act and NLRB law “support the conclusion that certain players at academic institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”
“The freedom to engage in far-reaching and lucrative business enterprises makes players at academic institutions much more similar to professional athletes who are employed by a team to play a sport, while simultaneously pursuing business ventures to capitalize on their fame and increase their income,” the memo said.
Abruzzo wrote that she hopes the memo will educate athletes, schools, conferences and others throughout college athletics for future cases “regarding employee status and misclassification.”
In a statement released later Wednesday, the NCAA said it believes “college athletes are students who compete against other students, not employees who compete against other employees.”
“NCAA member schools and conferences continue to make great strides in modernizing rules to benefit college athletes,” the NCAA said in its statement. “Like other students on a college or university campus who receive scholarships, those who participate in college sports are students. Both academics and athletics are part of a total educational experience that is unique to the United States and vital to the holistic development of all who participate.”
Representatives for the five largest athletic conferences did not immediately responded to a request for comment from The Associated Press.
“This is not a binding opinion. This is an advisory opinion expressing an opinion that has been expressed before, that college athletes should be recognized as employees,” said Gabe Feldman, director of the sports law program at Tulane University. “So it will not have any immediate impact on college athletes, but given everything else that is happening and all the external pressures from Congress, from state laws, from lawsuits, this is just another signal that the current collegiate model may need to change, and if the NCAA doesn’t change it, change may be forced upon it.”
The nine-page NLRB memo revisited a case involving Northwestern football players who were thwarted from forming a union when the board in 2015 said that taking their side “would not promote stability in labor relations.”
Abruzzo’s memo noted that much has changed since then, including a unanimous Supreme Court decision this year that lifted restrictions on some forms of compensation for college athletes.
Abruzzo also noted that players across the country had engaged in collective action following the murder of George Floyd as well as their organized efforts to play the 2020 football season during the coronavirus pandemic while demanding stringent safety protocols — action that “directly concerns terms and conditions of employment, and is protected concerted activity.”
“Players at academic institutions have gained more power as they better understand their value in generating billions of dollars in revenue for their colleges and universities, athletic conferences, and the NCAA, and this increased activism and demand for fair treatment has been met with greater support from some coaches, fans, and school administrators,” the memo reads.
The five-member NLRB oversees business relationships between private entities and employees. The NLRB doesn’t have jurisdiction over athletes at public schools, who make up the large majority of the NCAA’s top football division.
ESPN’s Adam Rittenberg contributed to this report.