NLRB GC Memo Says Certain College Athletes Are Employees, Have Right To Unionize

• Published date: 05 October 2021
• Subject Matter: Employment and HR, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Law Firm: Akin Gump Strauss Hauer & Feld LLP
• Author: Ms Stacey Eisenstein, Robert G. Lian Jr., Daniel L. Nash, Anthony T. Pierce, G. Hunter Bates and James C. Crowley

Key Points

• The NLRB's General Counsel issued a memorandum providing her position that the NLRA protects student-athletes who "perform services for their colleges and the NCAA, in return for compensation" and are "subject to their control."
• Coverage under the NLRA would permit student-athletes to form and join unions and potentially require athletic conferences and many private universities to bargain collectively with labor unions that represent student-athletes. It also would increase the risk of litigation for unfair labor practices.
• The memorandum, which follows the recent Supreme Court decision in NCAA v. Alston, reflects a departure from court decisions that have previously rejected claims that student-athletes who receive athletic scholarships and other benefits are entitled to the same protections as employees covered by various labor and employment laws

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On September 29, 2021, the General Counsel of the National Labor Relations Board (NLRB) issued a Guidance Memorandum ("Memorandum") setting forth her view that certain student-athletes are employees under the National Labor Relations Act (NLRA). The Memorandum, which reinstates portions of similar guidance issued in 2017 under the Obama administration, draws on the recent Supreme Court decision in NCAA v. Alston, 141 S. Ct. 2141 (2021), finding that the National Collegiate Athletic Association (NCAA) could not prohibit its member schools from providing student-athletes with certain forms of education-related benefits under federal antitrust laws.

According to the General Counsel, that decision, along with recent state laws and relaxed NCAA rules allowing students to earn compensation using their name, image and likeness, supports the view that student-athletes qualify as employees under the NLRA. In particular, the Memorandum cites the common law agency rules defining an employee as an individual "who performs services for another" and is "subject to the other's control or right of control," and notes that under those rules, "consideration, i.e., payment, is strongly indicative of employee status."

Although the NLRB has not previously ruled on whether student-athletes are employees protected under the NLRA, it came close to doing so in 2015, when members of the Northwestern University football team attempted to form a union. See Northwestern University, 362 NLRB 1350, 1356 (2015). Ultimately, in that case, the NLRB declined to exercise its jurisdiction to determine the players' employment...