Scott Cole | September 29, 2021
This afternoon, the General Counsel of the National Labor Relations Board (NLRB) issued GC Memorandum 21-08, reinstating and expanding the scope of previously withdrawn GC Memorandum GC17-01. The earlier memorandum had opined, among other issues, that scholarship football players in Division I FBS private sector colleges and universities are employees under the National Labor Relations Act (NLRA), with the rights and protections of that Act. This latest memorandum confirms that the General Counsel’s Office will continue to consider certain college athletes employees under the NLRA with the associated rights, including the right to organize. The General Counsel made clear that her office intends to institute enforcement action against private university "employers" if they fail to recognize the employment status of these athletes. Even more surprising, she is considering pursuing actions against the National Collegiate Athletic Association (NCAA) and conferences arguing they are joint employers with their member institutions, even if those members institutions are state universities. This could result in the NLRB, which normally has no jurisdiction over state entities, having defacto jurisdiction over state universities as it relates to the classification of athletes.
Key quotations from the opinion:
- "I will allege that misclassifying such employees as mere 'student-athletes,' and leading them to believe that they do not have statutory protections is a violation of Section 8(a)(1) of the NLRA"
- "Therefore, those football players, and other similarly situated players at academic institutions, should be protected by Section 7 when they act concertedly to speak out about their terms and conditions of employment, or to self-organize, regardless of whether the Board ultimately certifies a bargaining unit."
- "Players at Academic Institutions who engage in concerted activities to improve their working conditions have the right to be protected from retaliation."
- "In sum, it is my position that the scholarship football players at issue in Northwestern University, and similarly situated players at academic Institutions, are employees under the Act."
- "It may be appropriate for the Board to assert jurisdiction over the NCAA and an athletic conference, and to find joint employer status with certain member institutions, even if some of the member schools are state institutions."
- "I will consider pursuing charges against an athletic conference or association even if some member schools are state institutions."
The implications of this memorandum are wide-ranging. Further E-Lerts will follow as the full impact of GC 21-08 is further analyzed. In the meantime, if you would like additional background on this issue, please see the Daily Business Review article "What's Next after Alston and NIL? College Football Players as Employees?" authored by Higher Education Team Chair Scott Cole.