Say goodbye to the “student-athlete”

And just like that, the term originally developed by the NCAA in its quest to dodge potential workers’ compensation claims from injured college athletes has been wiped from the lexicon. Earlier today, National Labor Relations Board General Counsel Jennifer Abruzzo released Memorandum GC 21-08 stating her position that collegiate athletes, including specifically D1 FBS football players, are employees within the definition of Section 2(3) of the National Labor Relations Act (NLRA). The Memorandum, titled “Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act”, reinstates the findings of a prior Memorandum, GC 17-01, issued in response to the attempt by Northwestern football players to unionize in 2016. The previous Memorandum sent shock waves through the collegiate athletic community by concluding that the college athletes were indeed employees for purposes of the NLRA. Evidence cited in that Memorandum included: 1) that athletes performed a “service” for both Northwestern and the NCAA by playing football, which results in millions of dollars of revenue, massive public relations benefits, increased applications and substantial alumni donations; 2) the players in turn received “compensation” in the form of scholarships covering tuition, room and board, books, and stipends; 3) significant NCAA control over the athletes’ “terms and conditions of employment”, ranging from the regulation of practice and playing hours to eligibility, and minimum GPAs; and 4) Northwestern’s control over the manner and means of the athletes’ “work” and other aspects of their daily lives, including such things such as travel restrictions, daily itineraries and efforts to insure compliance with NCAA rules. The Northwestern players held a representation election, the results of which were never disclosed. Meanwhile, however, the Chicago District Office of the NLRB declined jurisdiction over the case on the basis of the fact that to do otherwise would not support the mission of the NLRB, which is “to promote the stability of labor relations”, given the fact that the NLRA only applies to private entities, and Northwestern was the sole private institution in the conference.

That decision has now effectively been overturned by Ms. Abruzzo’s Memorandum. But she didn’t stop there. The Memorandum makes it very clear that the NLRB will be taking the position that college athletes are entitled to the full protections of the NLRA, including protection against any form of retaliation for attempts to exercise their rights. This means that college athletes at private institutions are engaging in protected activity when they act as a group to speak out about the terms and conditions of their employment (think team rules, NCAA eligibility restrictions and the like), and when they attempt to self-organize. Additionally, the Memorandum specifies that misclassifying the college athletes as “student-athletes” has a chilling effect on their protected activity, and therefore the NLRB will be pursuing independent violations of Section 8(a)(1) of the Act against schools that persist in this conduct. Finally, and perhaps most importantly, the Memorandum states that both the NCAA and conferences may be held accountable under a joint employer theory of liability in certain circumstances. Ms. Abruzzo was careful to note that NLRB jurisdiction might be asserted even in cases where a conference includes public institutions.

The significance of this cannot be overstated. The Memorandum caps the stunning demise of the NCAA’s amateurism model, starting with the Northwestern unionization initiative, picking up steam with the O’Bannon decision, hurtling through the tunnel of multiple state NIL laws and finally hitting the crossroads of the Alston decision earlier this year, in which the NCAA’s last-gasp attempt at defending an increasingly archaic model was soundly rejected by the Supreme Court. The NCAA has already scheduled a Constitutional Convention for November. It remains to be seen whether it has the capacity to “reimagine college sports” in a model that is responsive to and respectful of the needs of its student employee-athletes.

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Helen A. “Nellie” Drew is an expert in sports law, including professional and amateur sports issues ranging from NCAA compliance and Title IX matters to facility construction, discipline of professional athletes, collective bargaining and franchise issues. Drew formerly served as an officer and in-house counsel to the Buffalo Sabres of the National Hockey League, after previously working as outside counsel to the Sabres and the NHL. Among her more interesting experiences were assisting former USSR superstar Alexander Mogilny in obtaining asylum status in the U.S. and working on multiple NHL expansions, including San Jose, Ottawa, Florida and Tampa Bay.
Drew teaches a variety of courses that incorporate topics such as drug testing in professional sports and professional player contract negotiation and arbitration. She is especially interested in the evolving research and litigation concerning concussions in both amateur and professional sports.

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