College athletes who earn millions for their schools are employees, the National Labor Relations Board’s top lawyer said in guidance issued on Wednesday that would allow players in private universities to unionize and negotiate their working conditions.
NLRB General Counsel Jennifer Abruzzo also threatened action against schools, conventions and the NCAA If they continue to use the term “student-athlete”, saying it was created to hide employment relationships with college athletes and discourage them from pursuing their rights.
Abruzzo wrote, “The freedom to engage in far-reaching and lucrative business ventures equates players in academic institutions to professional athletes who are hired by a team to play the sport.”
In a statement, the NCAA disputed the characterization of its athletes as employees, saying that its member schools and conventions “continue to make great strides in modernizing the rules to benefit college athletes.”
“College athletes are students who compete against other students, not employees who compete against other employees,” said the nation’s largest college sports governing body, with oversight of some 450,000 athletes. “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 the total educational experience that is unique to the United States and the participants in It is important for the overall development of all people.
Abruzzo’s memo doesn’t immediately change the dynamic between schools and their athletes, who can receive scholarships and limited cost of attendance funds in exchange for playing the sport. Instead, it is legal advice for the NLRB to come up with a case.
Abruzzo said in an interview with the Associated Press, this could be a reference to an attempt by a team to unionize, a claim of unfair labor practice or even to refer to a player as a “student-athlete”. can be started by the school.
“It just perpetuates the notion that sportspersons in educational institutions are not employees who have statutory protection,” she said. “It is undermining the rights of workers to engage with each other to improve the terms and conditions of employment.”
Tulane Sports Law Program director Gabe Feldman said the memo poses “yet another threat” to the NCAA and its business model, which rely on unpaid athletes to pay billions in revenue to be distributed to its 1,200 member schools. does.
“All signs point to an increasingly risky and fragile system of college athletics,” he said.
Although football is the college sport’s biggest money-maker among the five largest conferences, the memo will provide protection to all athletes who meet the legal definition of an employee: someone who performs services for and controls an organization. is subjected to.
NLRB has jurisdiction over private schools only; Public university athletes must look to state legislatures or Congress for workplace safety. But the NCAA and the conventions can be seen as co-employers, Abruzzo told the WNN.
“If they are engaged in commerce in the private sector, they are subject to that statute,” she said. “We believe that not only the College but also the convention directly and promptly governs the terms and conditions of employment.”
The NLRB’s new stance – which restores an old opinion that was quashed during President Donald Trump’s administration – is the latest test for the NCAA and the infrastructure of US college sports.
This spring, a unanimous Supreme Court held that the NCAA cannot limit education-related benefits. Pointing to the end of the NCAA’s business model. A few weeks later, under pressure from several states, the organization cleared the way for athletes to earn money based on their celebrity.
Since March, the NCAA has also faced criticism over the disparity between the resources, branding and support that costs its men’s and women’s basketball tournaments.. The organization plans to change its constitution, parts of which have remained for over a century.
Abruzzo also wrote that players across the country were engaged in collective action following the killing of George Floyd – action that is “directly related to the terms and conditions of employment, and protected concrete activity.” That’s how players banded together during the recent pandemic – both by arguing when to go ahead with the game, and for the rules to protect themselves once they do.
“Players at academic institutions gain more power as they better understand their value in billions of dollars in revenue for their colleges and universities, athletic conferences, and the NCAA,” she wrote.
“And this demand for increased activism and fair treatment has been met with greater support from some coaches, fans and school administrators. Players in educational institutions who engage in concrete activities to improve their working conditions are protected from retaliation. have the right to live.”
The nine-page NLRB memo revisits a case involving Northwest football players who were barred from forming a union When in 2015 the board said that taking his side “would not promote stability in labor relations.”
Much has changed since then, including collective social justice awakening and the Supreme Court’s Alston decision, which Abruzzo said “clearly stated that this was a for-profit enterprise and not amateurism.”
He said that if similar cases to Northwestern come up before the NLRB, it may be decided differently.
“I don’t think the board can or should punt,” she told the WNN. “I think we have more information that they are statutory employees.”
The memorandum issued by Abruzzo, who was appointed by President Joe Biden, supersedes a 2017 memo by his predecessor. That memo, in turn, reversed a memo issued by the appointment of President Barack Obama when Abruzzo was a deputy general counselor.
Southeastern Conference commissioner Greg Sankey said repeated reversals and conflicting court decisions make it difficult for institutions to plan.
“Given the resulting uncertainty and to address the many other challenges facing college athletics, we hope that Congress will step up and provide a clear and uniform legal standard in line with recent court decisions,” he said.
WNN College Football writer Ralph D. Russo contributed to this report.
Jimmy Golen is a Boston-based sports writer for The Associated Press and a former Knight Journalism Fellow at Yale Law School. https://twitter.com/jgolen . but follow him