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NLRB’s General Counsel Declares College Athletes Are Employees

October 1, 2021

Last week, the National Labor Relations Board’s (the “NLRB”) General Counsel, Jennifer Abruzzo, issued a memorandum addressing the status of college athletes under the National Labor Relations Act (the “Act”) – Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations ActGC 21-08 (September 29, 2021).

In her memorandum, she summarized the General Counsel’s position on an open question stemming from the NLRB’s 2015 decision in Northwestern University; ‘Are college athletes “employees” under the Act?’  Last week’s memorandum declares an emphatic yes!  Abruzzo determined that despite the NLRB’s decision in Northwestern University not to (i) exercise its authority over the school’s scholarship football players and (ii) decide whether college athletes are employees pursuant to the terms of the Act, the NLRB’s decision did not preclude a finding that scholarship athletes are employees under the Act.

Abruzzo goes on to state that the notion “Players at Academic Institutions” f/k/a “Student-Athletes” are employees is supported by the statutory language of the Act and the underlying policies developed by the NLRB. Further, she notes, the term “employee” is broadly defined under the Act with few exceptions—none of which cover college athletes or more specifically, college football players.  Abruzzo concluded that Players at Academic Institutions were akin to professional athletes, which entitled these college athletes to the same protections afforded other “employees” under the Act.

Not surprisingly, Abruzzo did not stop there, taking the opportunity to put colleges on notice that any misclassification of these “student athletes” as individuals who were not entitled to the protections of the Act would be found in violation of the Act.  Abruzzo also addressed the status of student teachers and research assistants in the footnotes of her memo, making it clear that these individuals are also considered employees and warrant the protection of the Act. 

Key Takeaways

The General Counsel’s most recent memo is the latest in a series of memos in which she has made clear her intentions to be a leader in shaping national labor law policy and to advocate her pro-labor stance. The memo also makes clear that the GC is looking to create a much broader application of the term “employee” under the Act—and not just on college campuses.  It looks like it will be quite a ride and how far it will go is yet to be determined. 

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.