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

• Published date: 05 October 2021
• 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...